Captain Developments Pty Ltd v Wingecarribee Shire Council

The issues are distilled

1. As stated at [8], in accordance with usual practice, the parties identified experts in certain disciplines to confer on contentions raised by the Respondent in the Amended Statement of Facts and Contentions, filed with the Court on 23 March 2023.
2. Those experts include: 1. In respect of planning and urban design: Mr Gerard Turisi, on behalf of the Respondent, and Mr Stephen Kerr (planning) and Mr Guy Luscombe (urban design) on behalf of the Applicant. 2. In respect of acoustic engineering: Mr Stephen Gauld, on behalf of the Respondent, and Mr Fu Siong Hie on behalf of the Applicant. 3. In respect of stormwater and flooding: Mr Drew Bewsher, on behalf of the Respondent, and Mr Kimi Zhang on behalf of the Applicant (stormwater) and Mr John Maddocks on behalf of the Applicant (flooding).
3. While the contentions remaining following joint expert conferencing are numerous, at the heart of this matter lie two questions; the character of the proposal in its context, and the means by which stormwater is to be disposed of in an area that is flood affected.
4. Notwithstanding submissions by counsel for the Applicant that the proposed development is "revolutionary", "world class" and "intended to be ground-breaking", it is only necessary, for the reasons that follow, for me to consider the means by which stormwater is to be disposed from the site given the shortcomings in that regard preclude, in my view, the grant of consent.

Stormwater drainage

1. Stormwater plans prepared by Fly Engineering on behalf of the Applicant (Exhibit B, Tab 5) propose stormwater drainage that the experts agree cannot be drained wholly by gravity to Moss Vale Road.
2. Mr Zhang describes the proposed stormwater design as a 'charged pipe system' between the roof gutters and the rainwater tank, located in the front setback, below the ramp to basement car parking. The proposed basement carpark is drained by means of a pump out system. Overflow from the rainwater tank to the onsite detention (OSD) tank occurs under gravity prior to discharge to Moss Vale Road.
3. However, Mr Bewsher considers the existing Council stormwater pipe in the Moss Vale Road reserve, which he states is undersized for the capacity required of it by this development, and any other development anticipated in the vicinity, in the R3 zone of WLEP.
4. In similar terms, the experts agree that approval of a charged system, like that proposed, is not acceptable on four grounds: 1. The stormwater system in Moss Vale Road is at capacity and no catchment-wide analysis is submitted to the contrary. 2. A charged system is unlikely to function properly in times of flood. 3. The proposed discharge of stormwater to Moss Vale Road is likely to exacerbate existing inundation to properties located north of the site. 4. A precedent would be set for future development between Links Road and Alcorn Street to adopt a similar approach to stormwater.
5. Relevantly, the flooding experts agree that approximately 25% of the subject site would be inundated in the five-year flood event, and approximately 50% of the site would be inundated in the 100 year flood, with a maximum depth of 600mm in the north-western corner of the site.
6. The Respondent contends that as the stormwater system in Moss Vale Road is at capacity, the site should dispose of stormwater via an easement over land located to the west of the site, fronting Loftus Street, by force of gravity.
7. The Applicant submits that efforts to obtain an easement over the property at 4 Loftus Street have proved unsuccessful, and that correspondence with the owner of the property at 6 Loftus is yet to be entered into. However, Mr Zhang has provided a concept sketch at Appendix B of the joint expert stormwater report showing a possible stormwater capture and disposal system utilising a path through 513 Moss Vale Road to the south of the subject site.
8. Mr Zhang's sketch is consistent with his written evidence that, in the event a drainage easement is secured for stormwater disposal, an alternative stormwater management system with OSD in a new location and rainwater tank is required.
9. To briefly describe Mr Zhang's sketch at Appendix B, an OSD and rainwater tank is proposed in the centre of the site, below the common path of access between Units 3-6. A pipe, said by Mr Zhang to be in the order of 300mm or 375mm in diameter, is shown travelling under the basement carpark slab to the southern boundary, at which point it is directed west, through the structural root zone of Tree 1, before diverting in a south westerly direction once more, at which point it enters the property at 513 Moss Vale Road. I am informed it would then proceed to the private land to the south-west of the site, cited at [15].
10. The Applicant's primary submission is that, should the Court be minded to grant consent to the proposal, a condition of consent could be imposed that defers operation of the consent until an easement is secured for disposal of stormwater.
11. The Applicant submits there are three options for the path of travel for such an easement. Firstly, through 4 Loftus Street to the culvert connecting to Mittagong Rivulet. Secondly, through 6 Loftus Street to the same culvert. Thirdly, through 513 Moss Vale Road to ultimately discharge to the natural watercourse in the private land cited at [15].
12. The Applicant submits that it would be within the capacity and expertise of the stormwater experts to prepare appropriate terms for a deferred commencement condition, setting out criteria to be satisfied in order to secure an easement from one of these three options prior to consent being operative.
13. However, in the course of their oral evidence, the experts agreed that the proposal shown in Mr Zhang's sketch at Appendix B requires fundamental revision if it is to, firstly, prevent back up during flood and, secondly, provide the necessary gradient between the site at a legal point of discharge.
14. At the very least, the OSD is required to be raised. The impact of this change on access to Units 3-6, if in this location, is unknown. If not in this location, any alternative location is also not known.
15. Section A4.5 of the BDCP requires a Stormwater Management Plan to be prepared in circumstances where a proposed development increases the impervious area of the site, or where there is a change in direction of overland flow. A Stormwater Management Plan is to be prepared in accordance with Council's Engineering Design and Construction specifications (Stormwater Specifications) (Exhibit 3, Tab 24).
16. The Stormwater Specifications provide, relevantly: "Underground detention is not allowed, except for: CBD areas - where above ground storage is not feasible. Strata subdivision - when above ground storage is not practicable due to safety. Only where there exists an adjacent underground stormwater system capable of accepting stormwater through a gravity system. …" (folio 483)
17. Section 3.9.1 of the Stormwater Specifications deal with development on flood affected land, such as the subject site.
18. Section 3.9.1. is in the following terms: "The Developer is to comply with the Council requirements for development on flood prone land. Different criteria will apply for the type of development based on the hazard category and risk precinct classifications. If the land has been identified as flood affected in the 10.7 (S149) certificate, the developers can do the following: • apply for a flood certificate (fee applies). or, • visit the Council website for flooding information applicable to the proposed development, please also refer to the Council DCP for more details. For the catchments outside Council flood studies, the developers are advised to have their own flood assessment by employing a Professional Engineer having appropriate experience and competence in the relevant registered area of practice. Council has no legal obligation to undertake a flood study for a private development. Model type required for Floodplain analysis: Council's floodplain modelling has been undertaken using "TUFLOW", software. Council will consider the use of other models as appropriate. When a development changes the flooding situation where existing flood information is available, the developer must fund Council's nominated consultant, who will be managed by Council, to run the existing flood model under the proposed development conditions."
19. The Respondent issued a Flood Certificate, dated 9 April 2021. Mr Bewsher's written evidence is that Council's Flood Certificate was inaccurate and inconsistent with its flood study. A further Flood Certificate was revised and issued dated 26 May 2022.
20. Section 3.9.4 of the Stormwater Specifications deals with the legal point of discharge for stormwater in the relevant terms: "Council will require proof that downstream easements from the subject property have been obtained for stormwater runoff. The easement shall be continuous from the subject property through to a watercourse with defined banks or to a Council drain or drainage reserve (only permitted where classification of the land pursuant to the Local Government Act 1993 permits this to occur)." (folio 486)
21. The Respondent has prepared without prejudice conditions of consent (Exhibit 8) that do not propose to defer operation of the consent until an easement has been secured, as proposed by the Applicant at [33].
22. Instead, the Respondent proposes, at Condition 3, that any consent, should the Court be so minded, not extend to any stormwater drainage work for the development on the subject site, or on adjoining land for which a separate development application and consent be obtained.
23. The scope of such a separate development application is contained in the terms of Condition 22 that requires a detailed stormwater hydraulic plan be prepared, demonstrating disposal of stormwater from the site to the satisfaction of the Respondent of the following matters: "… a) The proposed stormwater system will not create or exacerbate flooding or stormwater problems between the site and Mittagong Rivulet. b) Runoff from Moss Vale Road during extreme storms will not enter the basement (to be demonstrated via stormwater calculations). If required, mitigation is to be achieved to the satisfaction of Council by provision of a crest within the driveway ramp, or other means approved by Council. c) For any flood up to the 100 year flood, the existing volume of flood storage on the site is preserved or increased (to be demonstrated by calculations). d) Stormwater is drained to legal point of discharge. e) Stormwater from the development is not discharged to the Council drainage system in Moss Vale Road."
24. The Applicant states, in closing, that it adopts the Respondent's condition of consent, including the terms of Conditions 3 and 22.
25. However, in the alternative, the Applicant also submits that it is also open to the Court to grant an adjournment for a period of six weeks to permit the Applicant to undertake investigations, seek valuations and enter into correspondence with adjoining property owners for the purpose of securing an easement, which the Applicant accepts is required, and to prepare a detailed Stormwater management plan consistent with the terms of Condition 22.
26. Stormwater disposal is a principally contested issue between the parties, particularised in acute detail in the Amended Statement of Facts and Contentions filed with the Court on 23 March 2023.
27. Particular (i) identifies the obtaining of a drainage easement in the following terms: "As an alternative to the proposed charged system, the Applicant may consider obtaining a drainage easement through 4 or 6 Loftus Street to the rear and connecting to the Respondent's existing drainage system in Loftus Street."
28. As the obtaining of a drainage easement has been a live issue between the parties from at least 23 March 2023, I do not consider grounds for an adjournment to now investigate the obtaining of an easement to be consistent with the just, quick and cheap resolution of the real issues in these proceedings.
29. Neither do I consider it appropriate to impose conditions 3 or 22 that, in my view, have the effect of deferring an essential matter such as the disposal of stormwater.
30. The Applicant's stormwater plans in Exhibit B do not correlate to the development depicted in the Exhibit A plans. The Applicant's stormwater expert, Mr Zhang, accepts that the alternative concept at Appendix B of the joint expert report, does not work and requires revision.
31. While the Applicant may describe potential pathways through adjoining properties as 'options', no investigation as to levels or gradients has been undertaken. The Court does not have a plan or plans of the potential pathways from the subject site to a legal point of discharge on Loftus Street, the culvert leading to the Mittagong Rivulet, or the open watercourse on the private land cited at [15].
32. The impact of the relocation of the OSD on the development proposed on the subject site is unknown, as is the impact or impacts of the proposed alternative stormwater design on land adjoining and nearby to the site.
33. Without a drainage path or stormwater system design, supported by calculations of volume and velocity, water quality measures, investigation of levels, gradients, pit connections and the like, the Applicant cannot acquit the persuasive burden required of it when the Court considers the likely impacts of that development in accordance with s 4.15 of the EPA Act, including the environmental impacts on both the natural and built environment.
34. It has been commonly held by the Court that "an applicant for development consent always bears a persuasive burden of proof: …This persuasive burden includes providing information and arguments that relevant environmental impacts can be satisfactorily addressed": Australian Protein Recyclers Pty Limited v Goulburn Mulwaree Shire Council [2006] NSWLEC 641.
35. The relevant environmental impact to be considered by s 4.15(1)(b) of the EPA Act is the impact of stormwater collection on the site, and its disposal via adjoining and nearby sites. The latter is, by its nature, an off-site impact caused by the proposed development impacting adjoining and nearby land.
36. When considering off-site impacts likely to result from a development, the critical factor is that there is a connection between the likely impact and the proposed development: Ballina Shire Council v Palm Lake Works Pty Ltd [2020] NSWLEC 41 (Palm Lake) at [7].
37. Answering the factual question requires an evaluative judgment having regard to the degree of connection between the works and their impacts as well as the proposed development. (Palm Lake, at [24])
38. In the Palm Lake matter, offsite works were required to provide access to the site. Here, the likely impact is more immediate because it is the stormwater collected on the subject site, and its disposal, that the experts agree is unknown at this time.
39. The proposal lacks a means of disposing of stormwater in an area known to be flood affected, and that is located in the Sydney drinking water catchment. Furthermore, the impacts of any prospective stormwater design are simply unknown.
40. Absent a stormwater design, the Court cannot be satisfied that the proposed development would have a neutral or beneficial effect on water quality, to which s 8.8 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 is directed.
41. Accordingly, for the reasons set out in the decision above, the appeal is dismissed.

Orders

1. The Court orders that: 1. The appeal is dismissed. 2. Development application No. 22/0335 for the demolition of existing structures, removal of 12 trees and construction of a multi dwelling housing development comprising 6 x 3 storey dwellings over basement parking for 14 vehicles at 511 Moss Vale Road, Bowral is refused. 3. All exhibits are returned, except for Exhibits B and 1.

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: 01 August 2023