Walter Elliott Holdings Pty Ltd v Tweed Shire Council

[2011] NSWLEC 1383

Land and Environment Court

New South Wales

Medium Neutral Citation:

Walter Elliott Holdings Pty Ltd v Tweed Shire Council [2011] NSWLEC 1383

Hearing dates:

19 December 2011

Decision date:

19 December 2011

Jurisdiction:

Class 1

Before:

Hussey C

Decision:

Appeal upheld

Catchwords:

Development modification: placement of additional fill material to create higher building platform, land situated in flood - liable area, drainage easement

Legislation Cited:

Environmental Planning and Assessment Act 1979
Tweed Local Environmental Plan 2000
Tweed Shire Development Control Plan

Cases Cited:

Dogild Pty Ltd v Warringah Council [2008] NSWLEC 53

Category:

Principal judgment

Parties:

Walter Elliott Holdings Pty Ltd (Applicant)

Tweed Shire Council (Respondent)

Representation:

Counsel
Mr C Gough (Applicant)

Mr S Simmington (Respondent)
Solicitors
Storey & Gough (Applicant)

Lindsay Taylor Lawyers (Respondent)

File Number(s):

10924 of 2011

Judgment

Background

1. This appeal was lodged against council's refusal of a s96 application to modify a development consent to increase the amount of filling on the site to form a building platform for a new dwelling at 6 Creek Street, Hastings Point. The land is situated in a flood-liable area.

1. The original three bedroom, two storey dwelling was approved with a ground floor habitable level of 2.7 m AHD and no filling. A subsequent modification was granted to allow placement of 400 mm of fill on the site and to change the design to a 'concrete slab on ground'.

1. When the filling was undertaken an additional depth of approximately 300mm was placed on the site, together with the fill covering a larger area. Consequently, the current application is to regularise this additional filling associated retaining wall and dish drain.

1. As the property is low-lying and backs onto a creek that is flood-liable, the application was refused on the basis that the fill would not preserve overland flow paths and likely cause adverse impacts in the local area. A number of objections were lodged against the proposal.

The site

1. The subject site is described as Lot 10 DP 24564 and is located on the southern side of Creek Street. It has a total area of 640.29 sq m. The property is generally flat with a slight cross fall from the eastern side property boundary to the western side boundary and rear of the property has a fall of approximately 5% to the southern rear boundary.

Planning controls

1. The site is subject to the provisions of the Tweed LEP 2000, under which it is zoned 2(a) low density residential. There is also the Draft Tweed LEP 2010 under which it is zoned R2 Low Density Residential.

1. The relevant development controls are contained the Tweed DCP.

The evidence

1. In response to the flooding issues, a joint engineering report was prepared by:

• Mr C Huxley; Senior Hydraulic Engineer (BMT WBM Pty Ltd)
• Mr L Faulkner; Business Manager (Opus International Consultants)
• Mr D Rose; Planning and Infrastructure Engineer (Tweed Shire Council)

1. Further evidence was presented by:

• Mr A Smith; Applicant's consulting planner
• Mr P Clark; Council's planner.

1. A number of objections were lodged against the proposal and these have been considered along with the oral evidence of Mr J O'Reilly, 8 Creek Street.

1. The applicant's engineers undertook flood modelling for the catchment area and assessed the results relative to the following DCP Section A3 - Development of Flood Liable Land provisions:

• The design flood level for the subject allotment is RL 2.6m AHD and the minimum habitable floor level is RL 3.1m AHD.

1. Consequently, the engineers agree that:

(1)   The filling development will have no significant impacts on flood levels or flow patterns in the locality for a regional flood event (100 year ARI flood), as demonstrated by flood modelling scenarios.

(2)   The conclusions drawn from the modelling are considered representative of other possible flood scenarios in terms of various flood intensities and tailwater conditions, given the site's location in the flood fringe.

(3)   The scale of the development is on the limit of resolution for this kind of regional flood modelling.

(4)   Local drainage impacts of the development have been assessed based on survey of the area. The survey indicates that there is a stormwater flow path located along the boundary of NO.6 and NO.8 Creek Street.

(5)   The filling plan has been amended to replace the boundary retaining wall and fill with battered fill and perimeter drainage.

(6)   In order to provide positive grade for stormwater flow along the boundary within NO.6 Creek Street, a concrete lined spoon drain should be constructed. This spoon drain should be one (1) metre wide in order to be consistent with the existing approved filling extent for the site, and to assist with future maintenance. The spoon drain should be provided at a level that ensures flows are not directed onto adjoining land to the west (No.8 Creek Street).

(7)   The parapet wall shown on the building plans should be modified to provide for the free flow of water to the perimeter drainage system to a minimum width of one (1) metre from the western boundary.

(8)   Roof water from the dwelling should be disposed of via an on site infiltration system designed to cater for a minimum of the 3 month ARI storm event. Surcharge from this infiltration system should discharge as dispersed overland flow towards the rear of the property

(9)   By providing surface drainage through the site as outlined above, cumulative impacts of this and other developments in the locality are unlikely to be significant for regional or local flood events.

(10)   The northern, eastern and southern fill extents shown on the plans are considered acceptable in terms of potential drainage and flooding impacts.

1. In light of this engineers' agreement, the planners considered the potential impacts on the neighbouring properties of the additional filling, the proposed retaining wall impacts and overlooking opportunities. They agree that if the retaining wall is relocated within the property and the higher-level area is screened by landscaping, then the amenity impacts would be acceptable. They agree conditions of consent can cover this.

Conclusion

1. Having considered the evidence, the submissions and undertaken a view, I am satisfied that the proposed modification now reasonably responds to the contentions. Insofar as the site is within a flood-liable area, the flood modelling indicated that whilst there are regional flooding issues in the area, the increased (approximately 300 mm) filling that has been placed on the site and associated retaining wall will not impact on the flood storage area or materially alter overland drainage flows within the existing low lying topography.

1. The incorporation of the retaining wall is to contain the filling and this is now set back from the common boundary with No 8 by approximately 1 m to enable the construction of a 1 m wide, open dish drain along the common boundary of No 6 and 8 Creek Street. This is to be covered by a drainage easement. I accept the engineers' evidence that this will enable most overland flows from the relatively flat catchment area to be effectively conveyed to the creek area at the rear.

1. Insofar as the parties were not agreed on the terms of the easement, Mr Simmington's submission was that the property would obtain a benefit from the proposed works and accordingly it is reasonable in terms of the Newbury tests to be covered by a condition of consent. He referred to the matter of Dogild Pty Ltd v Warringah Council [2008] NSWLEC 53 where Biscoe J said:

50 As to the second Newbury test, all the speeches in Newbury indicated that the nature of the nexus is that the condition must "fairly and reasonably relate" to the permitted development. This was accepted in the High Court by McHugh J and Callinan J in Temwood at [57] and [155] respectively; by the NSW Court of Appeal, for example in Lake Macquarie City Council v Hammersmith Management Pty Ltd (2004) 132 LGERA 225 at [52]; and by this Court, for example in Parramatta City Council v Peterson (1987) 61 LGRA 286 at 295 - 296.

51 What is meant by "fairly and reasonably relate"? The authoritative answer in Temwood at [155] by Callinan J is that it means "it must be a condition, not simply justifiable as one which a reasonable planning authority could impose, but one which is fair and reasonable in the circumstances of the particular case". That seems consistent with dicta in Newbury that there is some overlap between the second and third Newbury tests. Quoting and applying that Temwood passage, Lloyd J held in Charalambous v Ku-ring-gai Council (2007) 155 LGERA 352 at [29] that satisfaction of the Newbury tests depends upon the circumstances of the particular case. His Honour also said that it was inappropriate to determine a bare legal question whether a condition satisfied the Newbury tests without knowing all the facts and circumstances of the case after a full hearing on the merits (at [29]). In the present case there has been a full hearing on the merits in order to inform the Court of the facts and circumstances of the case.

52 In Parramatta City Council v Peterson (above) Stein J held that "fairly and reasonably relate" means that the development is "benefited" by the public amenity provided. He said at 296 "In my opinion the second test of whether the condition fairly and reasonably relates to the permitted development is not answered simply by geographical proximity but rather whether the development is benefited by the public amenity provided. There is no doubt that it must benefit, (as indeed will the Parramatta CBD as a whole), even though the benefit may not be a direct one (in terms of geographical proximity)". A narrower and more rigid test of an "identifiable nexus" and a "direct connection" was rejected: at 295. Peterson , a s 94 condition case, was approved in the context of a non-s 94 condition in this Court in McGregor v Bathurst City Council [1995] NSWLEC 71 by Pearlman J who said: "The second of the Newbury tests was considered by Stein J in Parramatta v Peterson at 296-7 in which his Honour stated the Court's approach to this test should be a broad rather than a narrow approach and that the test is whether the permitted development is benefited by the condition imposed". Peterson was also approved by the Court of Appeal in the s 94 condition case of Lake Macquarie City Council v Hammersmith Management Pty Ltd at 238 [51] where Tobias JA (with whom Mason P and Young CJ in Eq agreed) said in relation to Stein J's judgment: "His Honour found that...the condition requiring a monetary contribution towards its construction satisfied the second Newbury test as the development would be benefited by its provision. This was clear..." Although this line of authority indicates that such a benefit is sufficient to satisfy the second Newbury test, it may not be inconsistent to envisage cases where a condition is fair and reasonable in the circumstances of a particular case (to use Callinan J's description) even if it does not benefit the permitted development.

1. However Mr Gough's submission is that the dish drain is primarily required to convey the external overland flows through the property and not solely for the benefit of the subject lot. Therefore the applicant should not bear full responsibility for the creation of the easement.

1. My assessment of these competing submissions is that the subject property does derive a material benefit from the approved works by reducing and controlling the entry of nuisance flooding onto the property and the dish drain facilitates this. However it is apparent that most of the overland flows onto the subject property would be from the broader catchment area, outside the subject property.

1. In these circumstances I am satisfied there is also a significant public benefit in directing the overland flows from Creek Street to the creek via the dish drain. Although I accept that in more significant flood events there is likely to be overland flows through and around the properties on the lower side of Creek Street.

1. Accordingly, I think it is reasonable that the applicant provides a 1 m wide easement to convey surface water along the dish drain and that it be in favour of the council. This option was discussed during the hearing and I accept council's agreement to prepare and register the necessary easement documentation. Furthermore, the easement should allow council representatives to enter the easement area for purposes of maintaining the dish drain.

1. In summary then, I am satisfied that this s 96 application relates to the same development, the application was notified and objections considered. The main objection was from Mr O'Reilly who was concerned about possible water ponding on his property from the filling and loss of privacy. I am satisfied from the evidence that providing the new common boundary fence has raised sections to permit overland flows into the dish drain, then there should be no unreasonable ponding on No 8. Furthermore, I am satisfied that the planting of appropriate species on the upper fill level along the common boundary should result in a reasonable level of privacy and the conditions require this.

1. Consequently, I am satisfied the application merits conditional consent.

Court orders

1. The Court orders that:

(1) Leave is granted for the applicant to rely on the further amended plan ' Dwg No TWN - T0032.00 R6 dated 12/11.

(2)   The appeal is upheld.

(3)   The application 09/0290/01 (as modified) to modify development consent No 09/0290 in relation to the property at No 6 Creek Street, Hastings Point (Lot 10, DP 24564) is approved subject to conditions set out in Annexure "A". The consent is to permit the additional filling, retaining wall and dish drain.

R Hussey

Commissioner of the Court

ANNEXURE A

Decision last updated: 16 January 2012