Castagnet Investments Pty Ltd v Woollahra MC & Anor

KEY ISSUES: Development Application :- Drainage easement for apartment building

Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Woollahra Local Environmental Plan Land and Environment Court Act

CASES CITED: Castagnet Investments Pty Ltd v Woollahra Municipal Council [2005] NSWLEC 647

APPLICANT Mr S Griffiths, solicitor SOLICITORS Pike Pike & Fenwick

RESPONDENT LEGAL REPRESENTATIVES: Mr P Rigg, solicitor SOLICITORS Deacons

Intervenor 2nd RESPONDENT Mr H. Kahagalle, solicitor SOLICITORS PricewaterhouseCoopers Legal

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

No. 10565 of 2005 Castagnet Investments Pty Ltd v Woollahra Municipal Council

1 By way of background, the Court handed down findings of fact on 13 October 2005 concerning the merits of a development application for the property known 124 - 126 Bellevue Road, Bellevue Hill. In summary, apart from the need to satisfy the Court that "adequate provision has been made for the disposal of stormwater from the land" the Court found that the proposed development for an apartment building containing five units with basement parking for 11 vehicles was satisfactory on a merits assessment and that the proposed development would not be out of character with the surrounding residential area, or create unreasonable adverse impacts.

2 However, the Court at that time, on the basis of the little evidence available, was not prepared to defer the fundamental question of drainage arrangements for stormwater, given the provisions of cl 25(2) of the Woollahra Local Environmental Plan Cl 25(2) of the Woollahra LEP that require: The council must not grant consent to the carrying out of development on land or the subdivision of land to which this plan applies for any purpose unless it is satisfied that adequate provision has been made for the disposal of stormwater from the land it is proposed to develop. 3 As there was some ambiguity as to the above provision, and its relationship with S40 of the Land and Environment Court Act (the Act), a question of law was referred under s 36(5) of the Act and Talbot J subsequently made the following determination in Castagnet Investments Pty Ltd v Woollahra Municipal Council [2005] NSWLEC 647 at par 20, 22, 25 and 26: The Court can hardly make a rational decision that it is satisfied that adequate provisions had been made for the disposal of stormwater when there is no evidence before it in respect of that issue. To defer the further hearing of the proceedings until such time as an easement is obtained would appear to be an exercise in futility in the absence of a determination of the site of the easement and the presentation of evidence that can satisfy the Court that the land the subject of the easement can be effectively utilised in a way that affords adequate provision for the disposal of the stormwater. I accept what the parties have put to me that cl 25 (2) of the LEP can be met if a fully detailed specification and appropriate plans are provided to it that enable it to come to the conclusion that " adequate provision has been made for" a drainage system that will dispose of the stormwater from the subject land. It is not necessary to the Court to be satisfied that the provisions are physically in place only that " adequate provision has been made for ." In other words if the Court can be persuaded that the proposed disposal scheme will work and can dispose of the stormwater by connecting to the existing council reticulation system (including to the extent that the existing system is capable of handling the output from the subject land) or by other means, then applying Billgate the constraint imposed by cl 25(2) can be satisfied.

In order to satisfy the primary requirement of cl 25(2) of Woollahra LEP the Court acting in the capacity of the council as consent authority must be satisfied that the plans make adequate provision for the ultimate disposal of stormwater from the land it is proposed to develop including the physical engineering and hydrological specifications for the work in all respects before it determines to grant consent.

After consideration of all issues and matters required to be considered before a development consent can be granted the Court can determine to grant consent subject to appropriate conditions including a condition that provision for disposal of stormwater be made in accordance with the plans and conditions applicable thereto without formally proceeding to make final orders until the applicant has a reasonable opportunity to make an application under s 40 of the Land and Environment Court Act.

4 The matter has now been referred back to me to determine the question of drainage, but not the formal easement that must be the subject of a separate application. This judgment deals only with whether the Court can be satisfied in terms of cl 25(2). In my findings of October 2005, I had insufficient evidence on the drainage disposal issue from the site to be satisfied.

5 The applicant has now provided additional expert evidence and an amended route for the stormwater pipe to that contained in the original concept submitted to the proceedings last year. On behalf of the applicant evidence was given by: + Mr S Gatenby, a consultant arborist and + Mr J Karikios, a consultant civil engineer; and + Mr W Home, a consultant arborist 6 Expert evidence was given on behalf of the council by: Ms L Bennett, council's arborist and councils development engineer of technical services provided written advice to the Court.

7 The proceedings resumed on site again to allow the Court to view the route of the proposed easement and hear from the owners of the properties so effected. The Court also heard a motion and I allowed an intervenor the owner of No.36 Carlotta Road to be represented in the proceedings and to provide evidence. Mr Di Veroli a consultant architect and Mr J Lawrence, civil engineer provided evidence for the second respondent.

8 On-site the Court heard from the owners of properties effected by the proposed easement route. Mrs Tan of Sens Pty Ltd, the owner of the six townhouses at No.36 advised the Court the property has been owned since 1980 when the townhouses were constructed. She considers that the disruption to her tenants would be unreasonable in terms of significantly impacting on the driveway and car access to the townhouses and the tenants of unit 1 would be further inconvenienced by the Courtyard paving and garden being dug up. She also advised that the driveway services No. 36A the adjoining battleaxe allotment.

9 The owners of No. 32 also gave evidence to the Court on-site and Mrs Quinn expressed concern about the detrimental impact on vegetation and disruption to their property by the construction of drainage pipes and the effect this would have on her husband who suffers from poor health a number of debilitating ailments.

10 The owner of No. 34 expressed concern to the Court as he considers the drainage pipe would cause unreasonable impact on the landscaping works that have been carried out at the rear of their property within recent times. In particular the 'Leighton Greens' that have been planted near the rear boundary to provide privacy to their pool and entertaining area and even to replace the trees would cause an impact given the fact the trees have already reached an effective size and height.

11 The owner of No. 36 Carlotta Rd. enquired as to why an alternative easement had not been considered through No.s 128 to 136 Bellevue Rd. Mr Lawrence prepared a statement and observed that approximately 106 metres or 194 metres depending upon the option adopted Carlotta Road, would be required for the total length of the new pipeline through the proposed easements as set out in the ACOR report as opposed to the option at the rear of 128 136 Bellevue Road. He concludes that the preferred route of the applicant is not straightforward involving: removal and relaying of paving over a total length of some 50 metres; digging through tree root zones; the underpinning of 15 metres of brick wall; removal and reinstating 15 metres of bush, thrust boring across the property boundary between No.s 34 and 36; occupation of part of the driveway to No.s 36 and 36A; and relocation of property services with consequent inconvenience to residents, and construction of from 20 to 145 metres of stormwater pipe under Carlotta Road with consequent interruption to local traffic. 12 In response to Mr Lawrence's report the applicant sought advice from his arborist and engineer. Mr Gatenby provided a report as to the impact that this would have on a number of significant trees and therefore the route as proposed by the applicant is the preferred route as the trees, except for one that the council does not object to its removal, can be maintained with applying best practice. Mr Karikios, the applicant's engineer who also provided written comments on the alternative route at the rear of 128 to 136 Bellevue Road concluded that based on the impact of the existing sewer main and large significant trees the location of a pipe at the rear of 128 to 136 is not considered to be a viable option.

13 Mr Lawrence provided comments on the above responses and maintains that an authoritative detailed investigation of the alternative route through the rear of No.s 128 to 136 Bellevue Rd. is still required. However, while the Court had the benefit of observing this alternative on site at the same time the role of Court in these proceedings is to assess the route as generally proposed by the applicant in terms of clause 25(2) and other provisions of the LEP and the DCP.

14 Mr W. Home prepared a report on behalf of the applicant and stated that: in summary the proposed works of running a pipe line for stormwater …can be done while preserving the roots of the existing trees. The trench should be hand dug from end to the depth required and work along the trench. This will allow the soil to fall away from roots and preserve the roots. It will allow soil from the required area to be dug and to fall into the trench along the proposed line for stormwater pipe. This will keep roots in tact and the pipe can be passed under the roots in order to preserve them... The main aim is to use hand tools and to make allowance to work around the roots. 15 The applicants consultant engineers concluded in their earlier report (exhibit R) that: Due to the difficulty of the site in terms of topography and the existing structures on surrounding lots we see that the granting of an easement through No.s 32, 34 and 36 Carlotta Road would be the most efficient location that satisfies the requirements of Woollahra Municipal Council and has minimum impact on residences and property owners. And this is shown in figure 1.

The provision of a drainage easement in favour of No. 124 and 126, requires approximately a 5m short length of easement within No. 36 Carlotta, which would then continue in a diagonal length across a small rectangular piece of No. 32 in the north eastern corner in order to protect mature trees. This will require the removal and reconstruction of the brick garden structure. The easement is then to continue along the rear boundary of No. 32 and turn and continue down the southern boundary (bordering No.34) to Carlotta Road.

At the finish of the easement through No. 32 a new 375mm diameter pipe is then to be constructed to Council specifications to connect to the existing Council gully pit in the front of No. 18 Carlotta Street. shown in Figure 1. This route is the least intrusive to all residents. It offers the least risk structurally to the surrounding buildings. With this option there is no need to implement machinery for boring; all work can be undertaken by conventional excavation methods from the surface… Construction of the pipeline through the easement would be undertaken in such a way to minimise the impact and protect significant existing trees along and within the immediate vicinity of the proposed easement, and maintaining the structure of the existing residence at No. 32 Carlotta. It is for these reasons it is proposed that the most unobtrusive method of pipeline construction would be to incorporate "trench less horizontal directional drilling" techniques along the southern boundary. Horizontal directional drilling or micro tunneling of pipelines has been used extensively in Australia for difficult sites where protection of surface features is paramount and where access is difficult. Where drilling is not feasible due to accessibility constraints the drainage line will be excavated manually. Manual excavation is expected to be undertaken within No. 36 Carlotta and along the rear boundary of No. 32 Carlotta. .. The use of a horizontal directional drilling rig would require closure of Carlotta Road during normal working hours for approximately 4 days for setting up. Construction of the drainage easement along the southern boundary of No. 32 Carlotta Road is not without risk to the structure of the existing residence at that site. The risk would need to be managed by provision of a dilapidation report of the condition of the existing building and most possibly concrete underpinning of the existing footings at key locations to maintain the structural integrity of the building… No. 36 Carlotta A number of services are located within the required drainage easement option for No. 36. Additionally there is a large drop in level from the boundary with No. 128 Bellevue to the garage level for the units for No. 36 Carlotta; this would result in the construction of a deep pipe network. Additionally there is not enough working room to manoeuvre a drilling rig, therefore this would necessitate the removal of service housings and services and pavements, inconveniencing residents and with considerable cost implications.

16 In the Council's Technical Services referral report, the council's development engineer recommended that: The proposal satisfies technical services concerns. No changes to the previously recommended conditions of consent are advised. The site drainage comments state: The submitted drainage easement plan is satisfactory and there are no objections to the proposed system. Two options have been presented regarding the proposed drainage infrastructure works in Carlotta Road. Both options are acceptable as they connect directly to councils in ground drainage infrastructure however technical services would prefer roaring CK 20.02 which makes a direct connection with council drainage infrastructure under the western kerb within Carlotta Road. As the works within Carlotta Road will require consent from council under s 138 of the Roads Act, a detailed investigation will confirm the most appropriate route. It has already been addressed by condition of consent. No changes to conditions as recommended within technical services refer response dated 20 Apr 2005 is advised. 17 The proposed easement route as shown in the applicant's plan would require the following time frames according to the joint statement of Mr DiVeroli, and Mr J Karikios: + 36 Carlotta Road 4 working days. + 32 Carlotta Road 2 to 3 working days. + 34 Carlotta Road no underpinning - 5 working days underpinning - 10 working days. + 36 Carlotta Driveway 25 working days. (includes temporary services, new services, paver removal and replacement, sandstone removal/replacement including work to vehicle crossing). Some of the above works can be done currently.

To maximise safety aspects, the engineers proposed barricades, traffic controller and public liability insurance. 18 With the benefit of the site inspection a joint report was prepared by the engineers and it was agreed that: 1. The proposed stormwater drainage route is an awkward route

2. The proposed 225 mm stormwater pipe to be laid along the length of the existing driveway to 36 Carlotta Road could be laid within the existing garden beds with the advantages of saving considerable time and avoidance of disruption to existing pavers and services. Final alignment with garden bed subject to advice from arborist.

3. Estimated construction time 8-10 working days. 19 The engineers provided a sketch of the amended route in Exhibit 18 that is attached as Fig. 2 to this judgment.

20 The arborist provided a joint report as follows:

Tree 1: Jacaranda Agree: 1. There is existing root plate compromise on the southern side of this tree (within Prp 36). 2. The section of pipe from the OSD to the 1st junction will have minimal impact on the tree. 3. Any pipe located from the 1st junction to the boundary is to be placed as far from T1 as possible and as close to the line of the 'planter' containing T2. Disagree: 1. The loss of root system by excavation from the 1st Junction to the boundary is excessive. Tree 2: Illawarra Flame Agree: 1. The impact of installing a pipe outside of the line of this trees 'planter' is negligible. Tree 3: Cypress Pine Hedge Agree: 1. Impact upon majority of trees within hedge negligible. 2. Western most tree of hedge row may be adversely affected. Removal may be necessary to provide additional protection zone to Tree 1: Jacaranda. Tree 4: African Olive Agree: 1. No objection to removal of tree. Tree5: Lemon Scented Gum Agree 1. this tree is a highly significant tree and should be retained and protected. Tree 6: Queensland Black Bean Disagree: 1. No agreement can be reached as to a proposed pipe route near trees 5 and 6. Tree 7: Australian Red Cedar Agree: 1. The distance of the proposed excavation is to close to this tree. Disagree: 1. The minimum distance that excavation can be undertaken at (SG:1.5m/LB:2m) Tree 8: Lilly Pilly Agree: 1. The distance of the proposed excavation is too close to this tree. Disagree: 1. As per Tree 7. Tree 9: Row of 14 Leighton's Green Cypress Agree: 1. The pipe is best not located below this row of trees. 2. That exploration of the concept of locating the pipe above ground (no excavation) but below the deck be undertaken. Disagree: 1. That the pipe can be installed with the trees on in-situ without adverse effect to the trees. Tree 10: Broad Leaf Paperbark (No. 36) Agree: 1. That the location of the pipe parallel to the western boundary and within the driveway is acceptable. 2. To protect the 2nd tree (from the north) within the row the pipe is to be located as far to the north as practical when entering from 34 into 36. 3. Removal of the northern most tree in order to protect the second tree may be necessary and allow siting of the pipe.

General Agreements 1. For the purpose of discussion 'north' is to the top of the plan. 2. Tree 2 has been incorrectly located on plans CK20.01 and CK20.02. (Illawarra Flame tree) 3. The line of the pipe from the rear boundary of No. 126 is to follow the boundary line as close as practical west then turn south to intersect with 32 Carlotta at the western and rear boundary junctions. 4. Work method statement (as requested on Conditions of Consent to cover: o Activities during works eg. Irrigation, storage of excavated soil etc. o Post works management eg. Irrigation regime, mulching of beds, ferterlizing etc. o Maintenance to be continued for minimum 12 months from issue of Occupation Certificate. o 21 In summary the arborists agreed that the Leighton Greens located at the rear of property No. 34 could be retained by the pipe being layed under the decking at or near ground level as this minimises excavation and even though there is little need for access this could be easily achieved. 22 With respect to tree No.-1 the Jacaranda Ms Bennett said that structural and feeder roots would be excessively whereas Mr Gatenby considers that only a small proportion of roots would be severed and the disturbance would be well within guidelines with exemplary work practices.

23 Trees numbered five and six in No. 32 Mr Gatenby considers that at any pipe work could be located close to the sewer near existing ground level and with the benefit of the compost enclosure pit this provides for some flexibility in the pipe route.

24 An extract from Our Culture: Integrated Management of Landscape Trees, Shrubs and Vines was provided to the Court by the applicant on the question of how close development can encroach into trees growing space and the extract.

…a healthy tree tolerates removal of approximately one third of its roots. Helliwell further stated that a healthy vigorous tree will withstand removal of up to 50% of its roots without dying, although there may be problems of stability if all roots on one side are severed…most healthy trees should be able to withstand removal of one half of the absorbing roots without serious effect particularly if watered wisely. 25 The engineers agreed that the proposed drainage easement represents an 'awkward route' and that a preferred solution is generally adjacent to the boundary but to keep certain trees this is not possible and the arborists recommendations would need to be accommodated and are necessary in this case. As such variations from property boundaries are proposed. And it would also be preferable to place the pipe beneath the deck of No. 34 and re-route the pipe through the garden bed of No. 36 rather than digging up the southern side of the driveway. This would require the pipe to be buried to a shallow extent with concrete casing it also has the benefit of not impacting less on the access to the properties served by the driveway which includes the six townhouses as well as the adjoining premises.

26 At the end of the hearing the Court requested details of the Australian Standard concerning the laying of the stormwater pipes in the context of the garden bed along the southern side of the driveway to No.s 36 and 36A Carlotta Road. Mr Lawrence provided the relevant standard confirming his verbal advice to the Court and he advised in writing the following:

from memory I referred to a table in Australian Standard 3500.3:2003 which specified a minimum cover of 100 mm for pipe layed in private property and 300 mm for other types of developments, but that if the pipe were to be caste in concrete (thus removing the flexible element of the pipe) then the cover could be reduced to 100 mm generally. On that basis I advise that, given suitable detailed design, the pipe could be located in the planter box. 27 Mr Griffiths submitted on behalf of the applicant that the Court can be satisfied that the proposed drainage easement as shown in the plans,or the variation through the garden bed and under the deck of No. 34, would satisfy the Court that adequate provision for stormwater drainage from the subject site is available. He submitted that a detailed construction management plan would need to be prepared in consultation with council. While he concedes that this would not be a straightforward easement nonetheless an easement can be provided with minimum impact to property owners to allow the subject site, which is zoned to permit medium density development. He furthermore submitted that the imposition of an easement would not impact on the development potential of the properties affected by the drainage easement. For No. 34 he submits that an acceptable position would be to transplant the trees to lay the pipe and reinstate the row of pines but that an even more acceptable option would be to re-locate the pipe to the northern face of the deck and this would have minimal temporal and long-term impact and there would not be the need to underpin the wall if the pipe is located under the deck.

28 For the property at No. 36 Mr Griffiths submits that No. 36 has already been redeveloped to achieve its medium density development potential and that there is a public benefit in obtaining the easements over or through No. 36 whether that be in the driveway or in the garden bed. The latter being the least intrusive impact and with minimum disruption to the driveway and access. In all respects he submits that the proposed route whilst awkward can be achieved to satisfy the requirements of cl 25 (2) of the LEP. He said the applicant accepts the variations arising from the hearing today (refer to Figure2) although the route shown in the consultants figure 1 is also capable of being implemented.

29 Mr Rigg in his submission said the Court must have regard to the planning regime in terms of the LEP and the DCP provisions. And for the Bellevue Hill North precinct the objective is to reinforce the landscape setting and maintain trees, in particular canopy trees, and the affectation on the landscape quality of the area. He submits the properties the subject of the easement are affected in a number of ways including environmental impacts and the real risk that the tree canopy would be affected and there would be a demise of significant trees because of limited setbacks of works to the tree roots.

30 Mr Griffiths submits the applicant recognises the difficulties in securing an easement and constructing the necessary drainage works to comply with councils requirements but nonetheless the Court can be satisfied in terms of cl 25 (2) with the plans and engineering reports that adequate provision has been made, consistent with the determination of Talbot J at paragraph 22.

31 In my overall assessment, in the context of the relevant planning provisions and based on the evidence to the Court, the proposed disposal of stormwater satisfies the controls and guidelines, including cl.25(2) of the LEP and the 2(b) zone objectives and cl. 4, 6, 7 of the DCP. Furthermore I am satisfied that the construction of the stormwater pipe will not adversely impact on the landscape quality of the Bellevue Hill North Precinct.

32 It is clear from the evidence that the proposed route is not only "awkward" but it will also be costly with the conditions, that the applicant accepts, to ensure that significant trees are protected. The proposed easement was designed in conjunction with an arborist for the route chosen and the construction methodology proposes to maintain all significant trees. The conditions also require supervision and I am persuaded by the applicant's experts that installation of the pipe and necessary works can be achieved to maintain the special vegetative nature of the properties where the easement is proposed.

33 I have given significant weight to the recommendation of Council's Engineer, as cited above, and I am now satisfied with the evidence before me that cl 25(2) can be satisfied.

34 Furthermore, to ameliorate some of the concerns of the landowners in the path of the easement the applicant is prepared to amend the route as shown in the plans such that the Leighton Greens are not disturbed on No.34 and to relocate the pipe to the garden bed of No. 36. These changes will reduce the inconvenience to the residents of those properties. If a s 40 application for an easement is made to this Court it should be on the basis of further detailed plans to reflect such amendments.

35 Accordingly on the basis of my assessment above I am now satisfied that the provisions of cl 25(2) of the Woollahra Local Environmental Plan can be satisfied and I would be in the position to grant conditional approval subject to a formal easement being obtained by the applicant. In accordance with Talbot J's determination the Court must postpone the making of final orders until the drainage easement question is resolved.

36 If an application for an easement is made under s 40 of the Land and Environment Court Act then the owners of any properties through which the easement is proposed are given the opportunity to be heard in such proceedings and the questions of whether the easement is reasonably necessary and compensation is considered at that time. Section 40 of the Act provides the jurisdiction of the Court to make an order for an easement and this function is only exercisable by a Judge of this Court. The relevant provisions are cited below to assist in an understanding of the matters to be addressed at the s40 application stage that relate to some of the objectors concerns.

37 The Land and Environment Court Act s 40 contains the following provisions:

(1) If the Court has determined to grant development consent on an appeal under s 97 of the Environmental Planning and Assessment Act 1979 , the appellant may apply to the Court for an order imposing an easement over land.

(2) The Court on application under subs (1), may make an order imposing an easement over land if it is satisfied that:

(a) the easement is reasonably necessary for the development to have effect in accordance with the consent, and …

(c) requires the Court in making an order to impose an easement to be satisfied that the owner of land to be burdened by the easement can be adequately compensated for any loss or other disadvantage that will arise from imposition of the easement and

(d) all reasonable attempts have been made by the applicant for the order to obtain the easement on easement having the same affect but have been unsuccessful…

(4) Before making an order under this section the Court must notify the owner of the land affected by the proposed easement … (5) An owner of land affected by the proposed easement … (a) may object to the proposed easement or works and (b) is entitled to appear before the Court in support of the objection

(7) The Court is to provide in the order for payment by the applicant for the order to such persons as the Court specifies of such compensation as the Court considers appropriate, unless the Court determines that compensation is not payable because of the special circumstances of the case.

(8) The cost of the proceedings, insofar as they relate to an order sought or made under this section are payable by the applicant for the order subject to any order of the Court to the contrary. 38 If an easement is secured the matter will then be referred back to me and I will make final orders in chambers.

39 The exhibits except for: the plans, A; B; and the conditions N; and 13, are returned to the parties. The parties are to retain those returned in the event they are required for a hearing on the easement.

      J S Murrell
      Commissioner of the Court
      Rjs/ljr

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