Waks v Marrickville No.2

[2004] NSWLEC 132

Land and Environment Court

of New South Wales

CITATION:	Waks v Marrickville No.2 [2004] NSWLEC 132
PARTIES:	APPLICANT S Waks RESPONDENT Marrickville Council
FILE NUMBER(S):	11042 of 2003
CORAM:	Bly C
KEY ISSUES:	Development Application :- three attached two-storey dwellings
LEGISLATION CITED:
CASES CITED:
DATES OF HEARING:	9/03/2004
EX TEMPORE JUDGMENT DATE :	03/09/2004
LEGAL REPRESENTATIVES:	APPLICANT Ms S Waks Self Representation RESPONDENT Mr G Christmas (Solicitor) Marrickville Council

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

11042 of 2003 Bly C 9 March 2004

S Waks
Applicant

v Marrickville Council
Respondent

Judgment

1 . On 24 November 2003, judgment was delivered in relation to an appeal against the refusal of development application 200300491 for the erection of three attached two-storey dwelling houses at number 10 Davies Street, Dulwich Hill.

2 . In that judgment, it was effectively held that the matter of flooding of the site was the only impediment to the granting of the sought development consent. More particularly, the evidence of the applicant’s engineer, Mr Duffel, was essentially accepted that the likely flood levels adjacent to the development would be minimal. However, taking a conservative approach, it was accepted that the site could be affected to some degree by a one in one hundred year flood event and, as a consequence, some further expert investigations were required to determine an appropriate floor level for the development of this site.

3 . Hydrological output data has now been prepared, which indicates that the one in one hundred year flood level is RL18.8 metres AHD. Allowing for a 300 mm freeboard, which I accept on the evidence of Mr Batako as an appropriate minimum above the one hundred year flood level, the lowest floor level within the development should be at 19.1 metres AHD.

4 . This means that the ground floor levels in the proposed development of RL17.14 metres and RL17.76 m would be 1.96 m and 1.34 m below the one in one hundred year flood level and, as a consequence, are clearly unacceptable, although, it is likely that a different design could be produced to accommodate these levels.

5 . In this regard, however, I accept the evidence of Miss Harris that a two-storey building, which would provide for habitable levels above the one in one hundred year flood level would, most likely, need to be significantly higher than what is presently proposed.

6 . A set of amended plans, apparently to meet flood level requirements, was sought to be tendered, however, I declined to accept these plans into evidence, having been provided much too late in the proceedings. It may well be that an amended design can be provided which meets flood level requirements and other planning issues which have already been dealt with in this case. However, I have concluded that such a design would be likely to be so different to what has already been considered by the council and the court that it should not be considered as part of these proceedings. Also, I have concluded that further deferral of these now long-running proceedings would be inappropriate.

7 . For reasons similar to what I gave in relation to the consequences of the preparation of a different design, I reject the submission that the present design could be conditioned within a development consent to meet the flood level requirements as an appropriate means of concluding these proceedings.

8 . A fresh development application will therefore be required if the development of the site is to proceed. Such an application would be expected to be dealt with expeditiously, taking into account the decisions of the court.

9 . The Orders of the Court are as follows;

1. The appeal is dismissed and the development application is refused.
2. The exhibits may all be retained with the exception of exhibit E.
___________
T A Bly
Commissioner of the Court
nm