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.