Baron Corporation Pty Ltd v Wingecarribee Shire Council

Land and Environment Court (NSW)|2018-04-26

Judgment

COMMISSIONER: This is an appeal against a deemed refusal of an application for Construction Certificate 15/0813.02 (hereafter the CC), seeking approval for civil works associated with Development Application (DA) 15/0813 on Lot 1 DP 1222269, Farnborough Drive, Moss Vale (the site).
DA 15/0813 relates to a 40 lot subdivision, with 1 residual lot, which was approved in July 2016 in accordance with plans submitted in the Infrastructure Report by Calibre Consulting in February 2016 and supported by a Statement of Environmental Effects (SEE) by Sake Development on August 2015.
The requirement for a CC is Condition (7) of the DA. Condition 22 of the DA details the works and services to covered by the CC, and requires the applicant to obtain approval from Wingecarribee Shire Council (Council) for relevant works, including stormwater drainage, 'Prior to the Issue of a Construction Certificate'.
Application for a CC relating to subdivision of the site was lodged with Council on 20 March 2017, which was resubmitted on 15 August 2017 with missing engineering drawings and stormwater modelling for the proposed works. A series of communications ensued, resulting in Council agreeing to stage the approval of the CC based on: 'bulk earthworks'; and 'civil works'. The request by the Applicant to seek certification based on 'internal' and 'external' works was refused by Council.

The site

Lot 1 DP 1222269 is in an elevated position in the topography, and is divided into northern (10 Hectares, Ha) and southern (4.2 Ha) catchments for the purposes of stormwater drainage. The majority of stormwater flow across the site (70%) occurs in the northern catchment, and is approved in the DA to be managed through a retention basin on the site, with discharge beneath the railway line north to Throsby Park.
In the southern catchment of the site, the remainder of the site's stormwater drainage (30%), the subject of the appeal, naturally discharges along Farnborough Drive.
The site has been cleared consistent with the DA, and was originally open grassland. There are intermittent pockets of native mature trees that are part of an Endangered Ecological Community (EEC), although not part of the Stage 1 of the approved DA.
To the south of the site is an electrical zone substation operated by Endeavour Energy (EE), and immediately to the south of that along Farnborough Drive, is Lot 201 DP 1095417, a small parcel of land owned by the Applicant.
Across the southern boundary of the EE land and across the extent of Lot 201 DP 1095417 is a wetland habitat that supports the majority of overland flow from the EE site. This wetland discharges as overland flow into the Reserve and ultimately into Council's stormwater system at the point of the proposed surcharge pit identified in the CC. The Reserve also takes overland flow from surrounding areas upgradient of the Reserve.
Immediately to the south of Lot 201 DP 1095417 adjoins the Reserve (Lot 40 DP 263854), which is registered as community land, used for the purpose of recreation. The Reserve is covered by open grassland which slopes towards a stormwater culvert (identified as pit EX9/C in Exhibit N), located in the road reserve of Farnborough Drive.
Drainage across the southern catchment of the site, together with the area upgradient of the EE and Reserve lots, is towards Lot 107 DP 1001704, a designated stormwater drainage reserve in the form of an open grassed channel, which further drains to Throsby Park.

Points of agreement and contention

Prior to the hearing, the parties agreed that the contention (2) that relates to Condition 22(b)(ii) of the DA consent, seeking NSW Roads and Maritime Services approval for upgrading intersection on Illawarra Highway, was resolved.
It was agreed by the parties, that the contention (1) under consideration by the Court, relates primarily to the proposed 'external' stormwater drainage works from the site's southern catchment, extending from the site along Farnborough Drive to the Reserve. The other aspects of the CC application are not in contention.
The parties agree that there is a valid s138 permit for stormwater works along Farnborough Drive, issued under s138 of the Roads Act . However, the extent of the approved works under this s138 permit is an issue of contention. The Council contends that the s138 permit only relates to land from the site to 41 Farnborough Drive, Moss Vale, (adjacent to the EE lot), as shown on Plan 200 of Exhibit C. It does not extend to the existing council drainage system (pit EX9/C) and the Reserve, as shown on Plans 210-B.
The Applicant considers that the s138 permit approves (stormwater drainage) works along Farnborough Drive from the site to the culvert adjacent to the Reserve (identified as EX9/C on Plan 210 of Exhibit C). It is the Applicants contention that the extent of the s138 permit includes works shown on Plans 200-B and 210-B, with associated long sections, as submitted in the CC application.
For this appeal, the Council contends that the CC should be refused due to an inconsistency with the requirement for 'adequate stormwater drainage documentation', as established in Condition 22 of the DA consent. The infrastructure approved under the s138 permit is insufficient to satisfy this condition.
The issue of whether the s138 permit approved stormwater drainage works from the site to the Reserve goes to the heart of the contention above. The Applicant contends that if the s138 permit has approved all works from the site to Reserve, it has satisfied the requirements of Condition 22 of the DA that relate to stormwater drainage documentation for the southern catchment.
During the hearing the Council sought and was granted leave by the Court to amend the Statement of Facts and Contentions (SoF) in Exhibit 1, to add a contention that the Court does not have jurisdiction in this appeal, as the CC application is not consistent with the DA consent. The contention is that the stormwater drainage plans for the southern catchment of the site, as provided in the CC application, do not have the same design outcome as the approved DA (15/0813), in particular the proposed discharge (as surcharge) to the Reserve which was not approved in the DA.

Planning Framework

The consent for development of a (40 lot with 1 residual lot) subdivision was made pursuant to s 4.16 (formerly 80(1)(a)) of the Environmental Protection and Assessment Act 1979 (EP&A Act), and conditions were imposed with the consent pursuant to s 4.17 (formerly s 80A).
The definition of work associated with a subdivision as defined under s 6.1 of the EP&A Act is: subdivision work means any physical activity authorised to be carried out in connection with a subdivision under the conditions of a development consent for the subdivision of land.
Certification of subdivision works associated with this appeal is required under s 6.3 of the EP& A Act. 6.3 Work or activity that requires certificate under this Part (cf previous s 109C) (1) A person must not carry out any of the following work or activity without a certificate under this Part that is required by this Part for that work or activity: (a) building work, (b) subdivision work, (c) the occupation or use of a building (including a change of use), (d) the subdivision of land, (e) any other activity to which this Part applies. (2) A person must not, in carrying out any such work or activity, contravene a certificate under this Part that applies to the carrying out of the work or activity. (3) A certificate under this Part is not required for the carrying out of exempt development. (4) This section does not apply to a compliance certificate.
The requirement for plans and specifications to support a Construction Certificate is established pursuant to s 6.8(1)(a) of the EP&A Act. 6.8 Restriction on issue of construction certificate (cf previous s 109F) (1) A construction certificate must not be issued with respect to the plans and specifications for any building work unless: (a) the requirements of the regulations have been complied with,
Prior to approval, a certifying authority is required to assess the consistency of the Construction Certificate application for this subdivision with the development consent, pursuant to cl 145(2) and cl 146(c) of the Environmental Protection and Assessment Regulation 2000 (EP&A Reg). 145 Compliance with development consent and Building Code of Australia (2) A certifying authority must not issue a construction certificate for subdivision work unless it is satisfied that the design and construction of the work (as depicted in the plans and specifications and as described in any other information furnished to the certifying authority under clause 140) are not inconsistent with the development consent. 146 Compliance with conditions of development consent A certifying authority must not issue a construction certificate for building work or subdivision work under a development consent unless it is satisfied that each of the following have been complied with: (c) each other condition of the development consent that must be complied with before a construction certificate may be issued in relation to the building work or subdivision work.
Works associated with stormwater drainage along Farnborough Drive require approval from the consent authority, pursuant to s138(1) of the Roads Act, as follows: 138 Works and Structures (1) A person must not: (a) erect a structure or carry out a work in, on or over a public road, or (b) dig up or disturb the surface of a public road, or (c) remove or interfere with a structure, work or tree on a public road, or (d) pump water into a public road from any land adjoining the road, or (e) connect a road (whether public or private) to a classified road, otherwise than with the consent of the appropriate roads authority. Maximum penalty: 10 penalty units.
The works specifically approved under the s138 permit are applied pursuant to s139 of the Roads Act. 139 Nature of Consent (1) A consent under this Division: (a) may be granted on the roads authority's initiative or on the application of any person, and (b) may be granted generally or for a particular case, and (c) may relate to a specific structure, work or tree or to structures, works or trees of a specified class, and (c1) in relation to integrated development within the meaning of section 91 of the Environmental Planning and Assessment Act 1979, is subject to Division 5 of Part 4 of that Act, and (d) may be granted on such conditions as the appropriate roads authority thinks fit. (2) In particular, a consent under this Division with respect to the construction of a utility service in, on or over a public road may require the service to be located: (a) in such position as may be indicated in that regard in a plan of subdivision or other plan registered in the office of the Registrar-General with respect to the road, or (b) in such other position as the roads authority may direct. (3) In particular, a consent under this Division with respect to the erection of a structure may be granted subject to a condition that permits or prohibits the use of the structure for a specified purpose or purposes.
The site is zoned R5 Large Lot Residential Wingecarribee Local Environment Plan 2010 (WLEP). The Reserve is zoned RE1 Public Recreation, pursuant to of the WLEP.
Stormwater drainage at and from the site is managed consistent with the Council relevant Policies of 2010, namely: 'Engineering Specifications and Guidelines Part 1 - Design' (hereafter Guidelines 1); and 'Engineering Specifications and Guidelines Part 2 - Construction' (hereafter Guidelines 2).
Management of the Reserve is described within the Council's 'Parks Strategy 2016' and the above Guidelines.

Expert Evidence

The Applicant has relied on Mr Cornelius Vink for expert evidence in stormwater engineering.
The Respondent relied on Mr Bradley Ashe for expert evidence in stormwater engineering.

Does the Court have jurisdiction to issue the construction certificate based on the application made?

The Council contends that the CC application (hereafter the application), the subject of this appeal, is inconsistent with the development consent (DA 15/0813) for the following reasons: 1. The stormwater drainage plans for the site's southern catchment, specifically the external works, as provided in the application, are not consistent with those listed plans and documents in the DA; 2. As described in the Infrastructure Report, the stormwater drainage from the southern catchment of the site was previously determined in the DA as 'requiring no further attenuation', and therefore would be discharged 'via Council's drainage system and a waterway through Throsby Park to combine with the runoff from the northern catchment'; and 3. The Reserve was not identified nor designated as a location for stormwater surcharge in the DA, as proposed in the application.
The Applicant contends that Council did not oppose the proposed use of the Reserve as a surcharge location in its discussions subsequent to the DA approval. The stormwater drainage, now the issue of contention, proposed in CC application was submitted on the basis of those discussions.

Evidence

During the hearing's site inspection, both experts agreed on the size of pipes required to connect with the existing Council stormwater system.
It is also agreed by the experts, that currently in periods of peak flow events, the stormwater culvert adjacent to the Reserve (pit EX9/C) results in minor and temporary flooding of the Reserve, which subsequently drains away without detrimental impact to neighbouring properties.
It was agreed by the experts that the 100 year ARI event will be transmitted as overland flow along Farnborough Drive towards the drainage system that connects to Throsby Park, as proposed in the DA.
In the hearing, the experts discussed in detail whether the proposed use of and location of the surcharge pit during a 5 year ARI (average recurrence interval, equivalent to a 20% annual exceedance probability, AEP) event into the Reserve was consistent with the DA consent. The 5 year ARI is also referred to as a 'peak flow' event.
The experts agree that based on the proposed stormwater design in the CC application, in a 5 year ARI event, post-development, there would be an increase of flow into the Reserve of 2.76 cubic meters/second (m3/s).
Mr Ashe agrees that the detail of the 'internal' stormwater drainage works provided in the application is consistent with the approved DA plans, and is not a matter of contention. There is also no issue regarding the proposed stormwater drainage works associated with the northern catchment.
Mr Ashe considers however that the proposed 'external' stormwater drainage works that relate to the southern catchment (along Farnborough Drive) are inconsistent with the DA. The inconsistency arises due to the need to provide for surcharge during a 5 year ARI event into the Reserve.
Mr Vink advised that the 'Drains' model used to support the DA application did not consider the wider catchment requirements, and the subsequent remodelling of stormwater flow for the southern catchment resulted in the stormwater flow to be discharged during a 5 year ARI event from the site exceeding that approved in the DA consent.
He determines that as a consequence, surcharge to the Reserve is now required during a peak flow event, and agrees it was not previously considered in the DA. In his discussions with Council prior to submission of the CC application, the proposed surcharge into the Reserve was supported as it was considered to 'remove water from the road during a peak flow event to prevent flooding'.
In his opinion, the Council had indicated a preference for the Reserve to be used for the proposed purpose of surcharge rather than manage peak flow events through the augmentation of the existing wetland on the Applicants land and used by EE, which allows overland flow onto the Reserve.
Mr Vink considers that the volume of proposed surcharge to the Reserve is insignificant, will pose no adverse risk to neighbouring properties and is consistent with the current use of the Reserve that accepts stormwater overflow from the EE site through the wetland. Mr Vink refers to the flood modelling undertaken by Council for the Farnborough Drive catchment, present in Exhibit K, to support this view, although has not quantified the change in the Reserve flood level.
Mr Ashe however makes a distinction for the use of the Reserve to receive overland flow as opposed to 'surcharged flow' from a piped system. The Reserve has no Plan of Management (PoM), which by his understanding does not therefore permit the Council to approve surcharge from proposed pit EX9/C into the Reserve. He accepts that if the stormwater flow occurred as overland flow, such as currently through the wetland located on the Applicants Lot (Lot 201 DP 1095417), the Reserve does not require a PoM for this event.
He is also of the opinion that Council is unable to approve surcharge into the Reserve as it would result in a 'nuisance' to existing users of the Reserve and could potentially result in flooding to nearby properties.
It was agreed by the experts that the s138 permit grants works in the road reserve along Farnborough Drive is required to manage the 5 yr ARI event. The issue of contention however is whether the s138 permit is sufficient to effectively manage the required stormwater discharge form the site.
Mr Ashe indicated that the s138 permit was issued in error and is not consistent with the DA.
Mr Vink considered it was unfortunate that due to a change in Council staff, the approving officer was not made available to explain the rationale for his decision in approving the s138 permit as he did. There are also no records provided on his process of thought.

Findings

The appeal relates specifically to consistency with the stormwater drainage design proposed for the southern catchment, from the site along Farnborough Drive. All other aspects of the CC under the application are not in contention and therefore will not be further considered in assessing consistency with the development consent.
The Infrastructure Report by Calibre Consulting (Feb 2016), on page 19 states 'The road drainage system has been designed with sufficient capacity to convey the 5 yr ARI storm within the in-ground pipes. The road network is also intended to act as overland flow paths to convey larger storms up to the 100 yr ARI storm event.'
This statement is consistent with the SEE that supports the DA. The SEE states that stormwater flow from the southern catchment of the site was determined as 'requiring no further attenuation', and in the Infrastructure Report would be discharged 'via Council's drainage system and a waterway through Throsby Park to combine with the runoff from the northern catchment'.
I agree with the experts that the approved stormwater drainage pipework from the site along Farnborough Drive is designed to transmit up to 5 year ARI flows and will ultimately be required to connect with the existing Council stormwater network at pit EX9/C.
It is also agreed that based on the southern catchment stormwater drainage design submitted in the CC application, surcharge would occur into the Reserve in a 5 year ARI event, and was not contended in the development consent.
I take note that Mr Vink, in the joint expert report (Exhibit 9), states 'Our drains model modelled the western gutter and noted that its capacity was exceeded by the 5 year ARI flow, and would therefore overflow the crown of the road and flow to the east' and 'In the post-development scenario, we calculated that the surcharge at proposed pit 9/C would be 1.39 cu mecs in the 5 year post development scenario'.
It was satisfactorily demonstrated by the experts that after a recalculation of the model parameters during the hearing adjournment, to consider 'split of flows between western and eastern sides of Farnborough Drive', an increase in surcharge in the Reserve to the order of 2.76 m3/s was predicted.
Prior to the issuance of a CC, cl 145(2) and cl 146 of the EP&A Reg require the consideration of consistency with the approved DA. I will consider these requirements separately as it relates to this appeal. 145 Compliance with development consent and Building Code of Australia (2) A certifying authority must not issue a construction certificate for subdivision work unless it is satisfied that the design and construction of the work (as depicted in the plans and specifications and as described in any other information furnished to the certifying authority under clause 140) are not inconsistent with the development consent. 146 Compliance with conditions of development consent A certifying authority must not issue a construction certificate for building work or subdivision work under a development consent unless it is satisfied that each of the following have been complied with: (a) each condition or agreement requiring the provision of security before work is carried out in accordance with the consent (as referred to in section 80A (6) of the Act), (b) each condition requiring the payment of a monetary contribution before work is carried out in accordance with the consent (as referred to in section 94 or 94A of the Act), (c) each other condition of the development consent that must be complied with before a construction certificate may be issued in relation to the building work or subdivision work.
Burwood Council v Ralan Burwood Pty Ltd (No 3) (2014) NSWCA 404 at [158] and [159], McColl JA, Barrett JA, Sackville AJA helpfully explain the importance of the 'mandatory language' and the removal of subjectiveness when assessing compliance with cl145 of the EP&A Reg as follows: [158] Clause 145(1) of the EPA Regulation, as originally made in 2000, provided that a certifying authority was not to issue a construction certificate unless it was satisfied of certain matters. One such matter was that the design and construction of the building, as depicted in the relevant plans and specifications, was not inconsistent with the development consent. [159] The Explanatory Note to the Amendment Regulation 2007 explained the amendment to cl 145 as one of a series of "consequential amendments as a result of the removal of subjective considerations for the issue of construction certificates and occupation certificates".
Further to this, as explained by Sully J , Simpson J, Sperling J in Moy v Warringah Council [2004] NSWCCA 77 at [79], 'The function of cl 145 is to ensure that the development as built will be in accordance with the development consent' and further to this at [80], 'Clause 145 is proscriptive'.
For the stormwater drainage system to work in the southern catchment as proposed under the CC application, it relies on surcharge into the Reserve. The surcharge is therefore a fundamental component of the proposed stormwater drainage design under the CC application. This 'surcharge' requirement however was not essential in the DA.
I agree with the Respondent, that the DA is supported with plans provided in the Infrastructure Report, which do not provide for discharge, in the form of surcharge into the Reserve in a 5 year ARI event. The Infrastructure Report clearly identifies that all flow up to the 5 year ARI event would be transmitted 'via in-ground pipes'. I therefore find that the plans submitted by Applicant in its application for a CC for civil works associated with the subdivision of the site are inconsistent with the plans approved in the consent of DA 15/0813.
Based on the evidence before me, I find that the requirement to discharge stormwater from the southern catchment, resulting in 'surcharge' during peak events (identified as 5 year ARI) into the Reserve was not contended, designed nor approved in DA 15/0813.
Therefore pursuant to cl 145 of the EP&A Reg, when applying a 'proscriptive' assessment, I find that the application for a Construction Certificate (for civil works) is not consistent with the approved DA 15/0813.
In consideration of cl146 of the EP&A Reg, the Applicant has not satisfied the requirement in Condition 22(a)(i) to demonstrate a legal right has been established to approve surcharge into the Reserve.
The Council's Guidelines 1, section D5.26 (5), clearly specifies that 'Discharge to Recreation Reserves (Community Land)' in the form of 'piped stormwater drainage' requires a Plan of Management. The parties agree that the Reserve is 'community land' and that no PoM exists for this purpose. I therefore accept the Respondents position that a PoM is required to permit surcharge from piped works onto the Reserve.
I do however note that the overflow of stormwater drainage from the EE site through the Applicant's adjacent Lot (207) into the Reserve during peak periods does not require a PoM, as the Guidelines specifically refers to 'piped' flow. I accept that the Applicant attempted to seek concurrence with Council for augmentation of this approach, however sort to abandon this on the initial advice of Council that the design for a piped flow was appropriate and a 'good engineering solution'.
I accept that the Applicant made, pursuant to s138 of the Roads Act, an application for the stormwater drainage works to extend from the site to the Reserve. However, for the following reasons, I agree with the Respondent that the s138 permit issued on 23 November 2017 only approved those stormwater drainage works shown in Plan 200-B, Rev 1, which extends from the site to 41 Farnborough Drive. This plan is the only stamped plan attached to the s138 permit. The other submitted plans are not referred to in the permit nor stamped for approval. They are therefore invalid with respect to the approved s138 permit.
It is unfortunate that the Council has provided no justification for approving the s138 permit in the form that it has, which in effect has approved a structure/works that cannot function, nor is consistent with the development consent to ensure 5 year ARI events are piped 'via Council's drainage system'. Under the approved works, the discharge does not connect to Councils drainage system.
I find that Condition 22(a)(ii) of the consent has also not been complied with, as by the Applicants own expert's admission, the peak discharge from the site will be greater that the pre-developed peak discharge, in the order of 86.5%. There is no ability to regulate offsite flow during peak periods, which results in all stormwater discharge from the site's southern catchment being discharged during a peak flow event.
It therefore follows that compliance with cl146(c) of the EP&A Reg has not been achieved.
I find that the DA does not make provision for the separation of 'internal' and 'external' site works, and I agree with the Respondent that to do so would result in a system that cannot function effectively. If the 'internal' works are approved separately, as suggested by the Applicant, there is no capacity for the system to function. I consider the intent of the requirement to show a 'legal right to discharge', as stipulated in Condition 22(a)(1), was to avoid this outcome.
I find that the CC application does not comply with the relevant regulations, namely EP&A Reg, cl145 and cl146. Therefore, s 6.8(1)(a) of the EP&A Act has not been complied with in relation to the application for a Construction Certificate for the civil works associated with the subdivision of the site.
The definition of a construction certificate is provided in s 6.4(a) of the EP&A Act as follows: 6.4 Kinds of certificates under this Part (cf previous s 109C) There are the following kinds of certificates under this Part: (a) construction certificate - a certificate to the effect that building work completed in accordance with specified plans and specifications or standards will comply with the requirements of the regulations.
Section 6.4(a) requires that to have effect, the works must be completed 'in accordance' with the plans and specifications given under the DA consent, and relevant regulations. For this appeal, the stormwater drainage works associated with the CC application must therefore be in accordance with the stormwater management plans nominated in the DA.
The difference in the plans submitted in the CC application relates to the design for surcharge into the Reserve which was not considered in the approved DA. I therefore find that the plans provided in the CC application are not in accordance with the DA, and a Construction Certificate pursuant to s 6.4(a) of the EP&A Act is not complied with.
For the reasons provided above, I therefore agree with the Respondent and find that the Court has no jurisdiction in this appeal to resolve the Construction Certificate application based on the stormwater drainage proposed for the southern catchment of the site as provided in the CC application. In this circumstance, I am precluded from issuing a Construction Certificate (for civil works) for subdivision of the site.

Is there sufficient documentation, consistent with Condition 22 to issue a construction certificate?

With respect to Council's contention that the CC application has provided insufficient information to comply with Condition 22 of the DA consent, I have resolved this previously and find this has not been achieved.

Orders

Consequently, the orders of the Court are as follows: 1. Leave is granted to rely on amended plans for construction certificate of 3 April 2018. 2. Leave is granted to rely on amended Statement of Facts and Contentions of 26 April 2018. 3. The appeal is dismissed. 4. Construction Certificate relating to civil works for development consent 15/0813 associated with Lot 1 DP 1222269, Farnborough Drive, Moss Vale is refused. 5. The Exhibits, except Exhibits 1, C and N, are returned. ……………………. Sarah Bish Commissioner of the Court

Amendments 25 July 2018 - Correct judgment published by order of Justice Pain on 25/07/2018. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 25 July 2018

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