Young v Newcastle City Council

[2007] NSWLEC 44

Land and Environment Court

of New South Wales

CITATION:

Young v Newcastle City Council [2007] NSWLEC 44

PARTIES:

APPLICANT
Bonnie Young

RESPONDENT
Newcastle City Council

FILE NUMBER(S):

10328 of 2006

CORAM:

Hussey C

KEY ISSUES:

Development Application :- Multi unit housing, filling, drainage, amenity impacts, s 40 drainage easement

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Newcastle Local Environmental Plan 2003

CASES CITED:

Property Partnerships Pacific v Woollahra Council [2005] NSWLEC 669

DATES OF HEARING:

30-31/01/2007

EX TEMPORE JUDGMENT DATE:

31 January 2007

LEGAL REPRESENTATIVES:

APPLICANT
Mr G. Williams, solicitor
of Thompson Norrie Solicitors

RESPONDENT
Mr P. Jayne, solicitor
of Sparke Helmore Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

31 January 2007

10328 of 2006 Bonnie Alissandra Young v Newcastle City Council

This decision was given extemporaneously. It has been revised and edited prior to publication.


JUDGMENT

Background

1 This appeal was lodged against council’s refusal of a development application proposing the demolition of an existing dwelling and construction of three 2-storey dwellings at 34 Helen Street, Merewether. The site is located towards the lower end of its drainage catchment area and contains a natural depression, which precludes natural drainage flow to the road frontage. Accordingly, existing overland drainage flows onto the adjoining property at No. 36 Helen Street and other lower-lying properties.

2 The original development application responded to the site contours with a site drainage layout, (designated Option 1, with "lower level" development with option 1 drainage), that included drainage being piped through the neighbouring properties, No. 36 Helen and No. 39 Watkins Street via an easement to be obtained. However, negotiations for this easement have apparently been unsuccessful.

3 Consequently, the second "higher level design with option 2 drainage (designated Option 2) should has been submitted, which proposes an alternative drainage layout that intercepts the upstream drainage along the common boundary with No. 32 and then pipes it directly to the existing road drainage system in Helen Street. However, this option necessitates a considerable filling of the natural depression and associated retaining walls along both sides of the boundaries, which are in the order of:

• up to 900 mm adjacent to No. 32 and
• up to 1700 mm adjacent to No. 36.

4 It is then proposed to construct fencing on top of these, up to 1800 mm above the retaining walls. This results in a boundary structure in the order of 3.5 m (maximum) height along the boundary with No. 36.

5 Consequently, the issues for the appeal concern, firstly, the adequacy and suitability of the proposed drainage and, secondly, the appropriateness of the filling and side boundary structures and height of the development, in terms of amenity and orderly development in respect of the option 2. In this regard I note the applicant’s submissions that it wishes to pursue option 2, but in the event of its failure, seeks to have the merits of option 1 considered on the basis of a future s 40 application to the Court to obtain downstream drainage easements to facilitate the lower level option.

The proposal

6 The details of the site, the proposal, planning controls and history of the development are contained in the Statement of Basic Facts on which I rely. In summary the proposal involves:

• the demolition of an existing dwelling and garage,
• the erection of 2 x 2-storey 3 bedroom attached dwellings,
• the erection of a 2-storey 4 bedroom detached dwelling at the rear.

7 The option 2 design provides for the filling of the depression, construction of retaining walls up to 1.7 m in height, to together with drainage including storm water retention systems for each dwelling, which is collected into a combined 450 mm pipeline that runs along the eastern boundary of the property, collects the upstream overflows from No. 32, and is then piped into Helen Street road drainage.

Planning controls
a Newcastle LEP 2003, under which the site is zoned 2(a) residential and the proposal is permissible with consent.
b Newcastle REP 1989,
c Newcastle DCP 2005 .

The Evidence

8 The detailed evidence on behalf of council was given by:

• Mr G Newton, council planner,
• Mr Brazaitis, council planner; and
• Mr A Peddie, council drainage engineer.

9 The evidence for the applicant was given by:

• Mr R Seymour, a registered architect and
• Mr C Jenkins, a consulting engineer.

10 A number of residents expressed their concerns at the view and they are summarised in Exhibit H. These matters have been considered along with the written objections contained in the council’s bundle of documents. In summary, these objections refer to unsatisfactory drainage impacts, exacerbation of existing drainage/localised flooding, unsatisfactory amenity arising from the boundary fence structure and loss of views/outlook.

11 The threshold issue in the matter concerns the drainage of the site in terms of interception of the upper catchment overland flows and subsequent control and discharge of storm water from the development site. As the applicant has been unable to discharge the storm water via the easement, the option 2 proposal is pursued but this involves significant filling of the land and the retaining walls on top of which are the boundary fences.

12 With regard to this higher level option “drainage”, I note that it intercepts the upstream overland flows from No. 32 by way of a proposed low retaining wall through which there is an opening towards Helen Street. From this it is proposed to construct a pit, which is to incorporate the 450 mm pipe to accommodate the 1:100 year storm flows. However, this alignment necessitates the vertical realignment of the public footpath and causes some potential problems for overland flows from the pit in the event of blockages, according to Mr Peddie. There also appears to be some inconsistencies between the concept landscape plan and the development plan in the ability to incorporate a satisfactory overland flow path from this pit at No. 32, to the footpath, due in part to the proposed raised levels.

13 From the evidence, it seems to me that the proposed drainage system relies on significant re-contouring of the natural levels of the site to achieve the necessary grade to Helen Street. Whilst it should improve the overall drainage system, it still necessitates the regrading of the footpath and introduces an artificial element when compared to the natural contours, which Mr Peddie considers undesirable in the public domain.

14 However, the main concern arising from this filling is the amenity impacts on neighbouring properties. Significant filling is required to undertake the regrading of the depression on the site resulting in the need for these retaining walls to protrude up to 1.7 m high. The neighbour, Mrs Coyle from No. 36, expressed concerns about the unsatisfactory visual impacts from her dining room window and property.

15 Mr Seymour has endeavoured to mitigate these adverse impacts by providing a garden setback on top of the retaining wall to incorporate screen planting. But Mr Brazaitis has concerns about the utility of the effective 300 mm wide setback to sustain plant growth, particularly in terms of access for maintenance and allowing for heat generated from the colourbond fence.

16 Insofar as the DCP does not specify design requirements for side fences, nevertheless Mr Seymour said that the following underlying objective in 5.2.3(g), is achieved;

“to ensure that the front and side fences and walls provide privacy, security and noise attenuation without having a detrimental impact on the streetscape and adjacent buildings."

17 In particular, he says the colourbond fence will attenuate noise and the higher level fence improves the existing overlooking opportunity situation. However, I have some reservations about this opinion considering the existing relationship between the detached low level dwellings, which seems to be a fairly normal relationship in terms of setback, boundary fence and height and separation between windows in this residential neighbourhood. There will be a significant change in terms of the higher level retaining wall/fence and incorporation of a driveway with considerably more traffic movements to access the garages along this boundary, which I think results in further negative impacts on No. 36.

18 This is consistent with the evidence of Mr Brazaitis who says that the proposed boundary structure is uncommon in this area and agrees that it will cause disamenity in terms of the outlook for the owner of No. 36 and from streetscape considerations. He says the proposed boundary structure does not satisfy the provisions of cl 5.2.2(a) of the DCP, which encourages development to show good manners to the surrounding development.

Summary

19 In summary then, having considered the competing positions, it is apparent that the current high level proposal has introduced a significant "artificial" component of filling into the natural topography of this neighbourhood. This results in the relatively high boundary wall structure between No. 34 and No. 36, which I consider is uncommon and undesirable in this immediate neighbourhood in terms of amenity impacts on neighbouring properties and visual amenity from the public domain. This is notwithstanding that there are other high level fences which have apparently been approved elsewhere, but their circumstances are unknown.

20 In my assessment, I accept Mr Brazaitis’ opinion that this fence will have a negative impact on the amenity of No. 36, particularly its outlook from the dining room, which is not offset by the increase in privacy due to the proposed high level fence. I am also inclined to accept his opinion that the proposed landscaping of the wall is minimal and likely cause maintenance problems given this minimal width.

21 Even though it is proposed with incorporate the narrow planters, this necessitates elimination of the landscaping strip adjacent to House 3, so that the common driveway abuts the building wall. Considering this is a 2-storey wall, my assessment is that minimal space is available between the fence and this wall to incorporate satisfactory landscaping, which is likely to create an undesirable "canyon like" driveway. In my opinion, this is a further negative aspect of the proposal.

22 I, therefore, conclude that the “artificial works” required to be imposed on the natural topography of the land do not satisfy the DCP objectives for the development to present as a good neighbour or the reasonable requirement for orderly development of land. Under these circumstances I do not consider that this high level (Option 2) proposal merits conditional consent.

23 In making this finding I have carefully considered the drainage issue on the basis of the Option 2 drainage, including that it necessitates the additional cost of filling, extra cost for the retaining wall, together with the artificial works in the regrading of the footpath, which I do not consider is in the overall public interest.

24 Following on from this finding, I note the applicant’s opening submissions that its fallback position would be to revert to the lower level plan –Option 1 (which is the same layout) and is subject to the acquisition of drainage easement through No. 36 Helen Street and No. 39 Watkins Street, which was unsuccessful before. However, I understand from both engineers’ evidence that it is feasible to convey the overland storm water through such an easement on this alignment and both engineers agree that it leads to a preferable drainage outcome, which provides benefit to downstream properties from No. 34 by intercepting the majority of the overland flows and minimising some nuisance flooding.

25 Accordingly, I note the submissions regarding the approach taken by the Senior Commissioner in Property Partnerships Pacific Pty Limited and Woollahra Municipal Council where at paragraph 13 he dealt with a similar situation:

“It seems to me therefore that in order to adjourn this matter to allow the applicant to seek a drainage easement under s 40 of the Court Act , I have to be satisfied that:

• the application is worthy of approval in all respects (including the physical arrangements for the drainage system) other than the drainage easement; and
• the easement is reasonably necessary for the development.”

26 Applying this approach in respect of the first point, I understand council finds that the lower level proposal (Option 1) completely satisfactory, subject to the easement and would be prepared to enter consent orders. Therefore, subject to hearing and determining any objections against this particular option, I consider this as a strong indication that the lower level proposal is worthy of consent. From my assessment of the current evidence, the lower level proposal would also generally address most of the objections raised by the neighbours, so as to enable its conditional approval.

27 Reference then to the second point, confirms that the lower level proposal requires a natural drainage outlet, which can be achieved through the neighbouring properties. From the engineering evidence presented, I understand the easement would permit the construction of an appropriate drainage line, which benefits the subject property and the neighbouring property, No. 36 and other downstream properties.

28 On this basis then, I conclude that a drainage easement generally along this alignment is reasonably necessary for the more acceptable lower-level development to proceed within acceptable environmental impact limits.

29 So that before making any final orders I invite the parties to consider these findings and have the opportunity of making any submissions they wish. However I also have a reservation about the concept landscaping plans that would also apply to this lower-level option. I consider the detailing is somewhat inadequate. I understand the DCP requires consideration of a reasonable landscaping approach and I do not think it appropriate to defer this landscaping concept to some other stage of the consent process

30 Having considered the further submissions, I note the application to withdraw the higher-level option and revert to the lower-level (Option 1), which is basically the same development layout with less fill. As Council has no objection to this course of action, this application is allowed and the matter is adjourned, by consent to allow the parties to make the necessary arrangements for a further consent orders hearing, including clarification of landscape details and other arrangements for acquisition of the subject drainage easement.

31 The matter is referred to the Registrars call over 5 February 2007.

___________________

R Hussey
Commissioner of the Court
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