Castagnet Investments Pty Ltd v Woollahra Municipal Council

Environmental Planning and Assessment Act LEGISLATION CITED: Woollahra Local Environmental Plan 1995 Woollahra Residential Development Control Plan 2003

CASES CITED: Billgate Pty Ltd v Woollahra Municipal Council & Anor. [2004] NSWLEC 436

APPLICANT Mr S Griffiths, solicitor SOLICITORS Pike Pike & Fenwick LEGAL REPRESENTATIVES: RESPONDENT Mr J Bingham, solicitor SOLICITORS Deacons

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

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

1 An appeal under s 97 of the Environmental Planning and Assessment Act (the Act) was lodged against Woollahra Municipal Council's refusal of a development application for an apartment building containing five units over basement parking for 11 cars.

2 The parties were in agreement and advised the Court on the view that the matter of stormwater drainage in the Statement of Issues would not need to be addressed in these proceedings as an easement would be required before the development could proceed and the applicant would need to make an application for an easement under s40 of the Land and Environment Court Act.

3 On returning to Court I requested clarification and the parties advised that the location of the drainage easement is a separate question and if the Court is minded to grant approval in these proceedings then the Court because of the provisions of cl 25(2) of the Woollahra Local Environmental Plan could only issue an interim judgment and adjourn proceedings to allow an application to be made under s 40 of the Court Act. And that this approach is consistent with the procedure adopted by Bignold J in Billgate Pty Ltd v Woollahra Municpal Council & Anor. [2004] NSWLEC 436.

4 Clause 25(2) states: 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. 5 On the stormwater drainage issue Mr Griffiths for the applicant at the end of the hearing made the following written submission: In Billgate Pty Ltd v Woollahra Municipal Council [2004] NSWLEC 436 (9 August 2004) Mr Justice Bignold ruled that this clause is a precondition to the grant of development consent which required drainage arrangements to be in place prior to the consent. Council insists that the "adequate provision" be by way of an easement over downstream properties rather than by way of a pump-out system or other such means. The applicant presently does not have agreement from any owner of a downstream property to provide an easement and proposes therefore to make application to the Land and Environment Court that the Court order an easement pursuant to s 40 of the Land and Environment Court Act. Section 40(1) of the Land and Environment Court Act reads: "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." Hence it is not yet open to the applicant to make an application under s 40 of the Land and Environment Court Act. This Court firstly has to determine to grant development consent in these class 1 proceedings. In Billgate, the Court held that the words "to determine" ought be liberally construed so that s 40(1) was enlivened in the event that a Court decided to grant development consent but withheld from making final orders for appropriate reasons, i.e. to permit the applicant to bring such proceedings where the Court has determined in the class 1 proceedings that there is no other impediment to the grant of development consent. 6 However on my reading of his Honour's judgment I am not persuaded that the procedure agreed to between the parties for this appeal is correct because of the provisions of cl 25(2). Bignold J deals with a question of law with different facts to the case before me. And from my understanding of the judgment the issue of stormwater drainage should not be deferred to when an application for an easement is made under s40 of the Court Act.

7 In this matter the only evidence before me is exhibit c, a plan dated February 2004 that shows a broken line for a stormwater drainage easement to be created over the properties 128 Bellevue Road and 30 Carlotta Road. I note in Council's bundle there are repeated requests for details and a stormwater layout plan, exact points of connection to council's drainage infrastructure, and location of all trees in relation to all drainage lines. The court cannot be satisfied on the evidence presented that "adequate provision has been made for disposal of stormwater from the land".

8 In the case before his Honour there was an existing easement however the right was limited to one lot for the purpose of a single or dual occupancy and the proposal was to develop two lots for 9 units. Furthermore, his Honour noted that the development application included a series of plans depicting the proposed stormwater management scheme for the proposed development, "Drawing CO-5 shows the existing drainage easement over the adjoining property fronting Wallaroy Road and contains a notation that the drainage lines and infrastructure etc proposed on the development site are to be connected to that existing easement."

9 In his Honour's judgment under the heading The Court's Adjudication Bignold J states: 11 In my judgment, the question of the impact of cl 25(2) of the LEP on the pending related development appeals cannot be determined on the basis of the agreed facts in advance of the hearing of the appeals on the merits because it will be on that occasion that the Court will need to determine on the basis of the evidence adduced at the hearing whether it is relevantly satisfied of the requirements of cl 25(2) of the LEP. Unlike Codlea (which itself did not involve the adjudication of the question of law as a preliminary matter) the requirement of cl 25(2) of the LEP that there be " adequate provision for the disposal of stormwater " is not determined by the attitude or action of the Council. Rather, it is a matter between the Applicant and the relevant landowner of the land over which the easement is necessary. The agreed facts do not conclude this matter other than to state that an easement is necessary and to date none has been granted. 12 There is no issue between the parties that cl 25(2) of the LEP precludes the grant of development consent to the two pending development applications unless the Court relevantly " is satisfied that adequate provision has been made for the disposal of stormwater from the land it is proposed to develop ". 13 To the extent that the parties are in dispute concerning the precise limits of the reach or ambit of the requirement that there be " adequate provision ", I am of the opinion that that requirement in the present cases (which propose the disposal of stormwater via the existing easement over the adjoining property fronting Wallaroy Road) includes consideration of the legal capacity or competence for so utilising the existing easement (in addition to any question of the physical capacity of the existing drainage infrastructure provided in that easement)… 19 For all of the foregoing reasons, I would answer the question of law in the following manner (which is an unavoidably lengthy answer but necessary in order that on the hearing of the related appeals both the parties and the Commissioner have the benefit of my adjudication on the matters presently in dispute between the parties) - The Court may not grant development consent unless it is satisfied that adequate provision has been made for the disposal of stormwater from the land it is proposed to develop in terms of cl 25(2) of the LEP. In the present cases where it is proposed to utilise the existing easement over an adjoining property the question of the adequacy of the provision may legitimately include consideration of the legal capacity or competence to utilise the existing easement (in addition to any consideration of its physical capacity). If on the hearing of the appeals it be held that the existing easement is not legally available for the proposed purpose the requirements of cl 25(2) of the LEP would not be capable of being satisfied by the imposition of a condition of development consent requiring such provision but those requirements would be capable of being satisfied by the making of an order pursuant to the LEC Act , s 40 for the creation of any necessary easement if the Court, on the hearing of those appeals, determines to grant development consent. 10 I will return to the issue of stormwater drainage. The following provides an assessment of the issues contested in the proceedings before me and on these issues I conclude that the proposal has merit and on these issues there are no reasons to warrant refusal of the application.

11 The site is located on the southern side of the road known as 124-126 Bellevue Road, Bellevue Hill. The two allotments are described as Lots 6 and 7 in DP 7523. The site is irregular in shape and has a combined frontage of 24.4 m to Bellevue Road with a depth of 44.5 m along the western side boundary about 37 m to the eastern boundary with a rear south-western boundary of some 49 m yielding a total site area of 1,387 sq m.

12 The site has a north-east frontage to Bellevue Road. From Bellevue Road the site slopes steeply away by over 8 m that includes a 3 m drop from the footpath to the existing dwellings. Each site has a two-storey dwelling served by a freestanding double garage adjacent to the front boundary of each allotment.

13 The surrounding area is Residential with large detached dwelling houses many with garaging built to the street boundary due to the steepness of the land. The southern rear boundary of the subject site adjoins a large townhouse development that was built in approximately the 1970's and this has a right of carriageway for access from Carlotta Road. 14 Bellevue Road contains substantial street trees that contribute significantly to the character of the area. Bellevue Road is relatively steep, running from the ridge of Old South Head Road down to New South Head Road and there is also a significant difference in topography of the properties on the northern side of the road compared to those on the southern side including the subject site.

15 The Statement of Basic Facts describes the proposal to demolish the existing dwellings on the site and construct a new three-storey residential flat building with basement carparking. The ground and first floor provide two residential units of 3 bedrooms each and level 2 contains for one unit of 3 bedrooms.

16 The basement carpark has vehicular access from Bellevue Road by way of a car lift, a pedestrian lift, and stairs are also provided for access to each level. The units at the ground level will have access to extensive terrace areas around the perimeter of the site and the above ground units will have access to balconies. The swimming pools have been deleted from the proposal.

17 The overall height of the proposal from existing ground level is 10.25 m and the floor space ratio (FSR) of the proposal is 0.67:1.

18 The Court met on site with the parties and heard from a number of resident objectors who also made written submissions in response to the notification of the application. The residents are concerned that the proposed apartment building will be out of character with the area which is predominantly large dwelling houses. They are also concerned about safety associated with the number of vehicles generated by the proposal and the entrance and exit of cars from a car lift from a busy through road that also provides access to a number of schools in the area. Concern was also expressed about vehicles waiting on the street to access the car lift that serves the proposal. Residents who live at the rear of the subject site, in properties that front Carlotta Road are concerned about the impact of the proposed developments on existing vegetation and their privacy. 19 The Court had the benefit of expert evidence from the Court-appointed expert, Ms A McCabe, and the applicant's architect, Mr Brenchley. On the issue of traffic and parking the Court heard evidence from Mr Hutcheson for the Council and Mr Varga for the applicant, both consultant traffic engineers.

20 The statement of issues identified a number of issues, however, by the time the matter was heard a number were resolved by either amended plans, including deleting the swimming pools, and/or the provision of further information.

21 The hearing also provided the opportunity for the experts to confer to address the issues of solar access to the proposed units, privacy and overlooking and the question of landscaping and retention of existing vegetation.

22 The subject site is zoned Residential 2(b) under the Woollahra Local Environmental Plan 1995 and residential flat buildings are a permissible use with development consent. The zone boundary changes to Residential 2(a) at No. 120 to the east and the properties opposite and on the northern side of Bellview Road are also in the 2(a) zone. This creates the need to ensure that residential flat buildings are compatible in the overall context. 23 The objectives of the Residential B Zone are: (a) To provide for areas of medium and high residential development in appropriate locations, (b) To encourage a diversity of dwelling types and tenure.

24 The objectives of the Plan in relation to residential development include:

(ii) To undate population density to the capacity of the existing road network, the availability of parking, the provision of public open space, the capacity of the natural environment to accept change without losing its attributes, the capacity of the existing utility networks, the level of service by public transport, and the proximity to the city centre, schools, shops, health services and community facilities. (iv) To encourage and facilitate opportunities for diversity in dwelling density, type and tenure in suitable locations throughout the area of Woollahra, and

(v) To encourage and promote sustainable development by extending the use of existing and new residential buildings through the provision flee accessible adaptable housing requirements and by increasing the number of fully accessible and adaptable houses in the area of Woollahra . 25 Clause 8(5) states that: The council shall not grant consent to the carrying out of development on land to which this plan applies unless the council is of the opinion that the carrying out of the development is consistent with such objectives of this plan and the zone within which the development is proposed to be carried out as apply to that development.

26 The objectives of the minimum site area and frontage standards set by cl 10B are as follows:

(a) to achieve compatibility between the scale, density, bulk and landscape character of buildings and allotment size, (b) to provide sufficient space between buildings, to maximise daylight and sunlight access between buildings, to ensure adequate space for deep soil landscaping and to preserve view corridors, (c) to prevent permanent barriers to sub-surface water flows, (d) to ensure that there is sufficient land for car parking on site, (e) to encourage consolidation of allotments in appropriate locations to enable the development of a diversity of dwelling types. 27 For the proposed development cl 10B is relevant as where four or more dwellings are proposed the site area must be 930 sq m or more and the width at the front alignment 21 m or more. The site complies with these requirements.

28 The objectives of the FSR standard are set out in cl 11AA and they are as follows: (a) to set the maximum density for new development, (b) to control building density, bulk and scale in all residential and commercial localities in the area in order to achieve the desired future character objectives of those localities, (c) to minimise adverse environmental effect on the use or enjoyment, or both, of adjoining properties, and (d) to relate new development to the existing character of surrounding built and natural environment as viewed from the streetscape, the harbour or any other panoramic viewing point. 29 The FSR controls are set out in cl 11 and refer to the relevant density maps attached to the LEP. For the subject site the maximum FSR is 0.625:1 and the proposal complies.

30 The objectives of the maximum building height development standards are set out cl 12AA. a) to minimise impact of new development on existing views of Sydney Harbour, ridgelines, public and private open spaces and views of the Sydney City skyline, (b) to provide compatibility with the adjoining residential neighbourhood, (c) to safeguard visual privacy of interior and exterior living areas of neighbouring dwellings, (d) to minimise detrimental impacts on existing sunlight access to interior living rooms and exterior open space areas and minimise overshadowing, (e) to maintain the amenity of the public domain by preserving public views of the harbour and surrounding areas and the special qualities of the streetscapes. 31 Similarly for height the LEP refers to the relevant map and for the subject site the maximum height is 9.5 m and the amended proposal exceeds this for the central part of the site where the building is 10.25 m. The SEPP 1 objection is assessed below.

32 The Woollahra Residential Development Control Plan 2003 is relevant to my assessment of the development application. Part 3 of the DCP sets out requirements for a site analysis and s 4 provides precinct controls and for this site the Bellevue Hill North Precinct is relevant. The precinct is described as containing 3 distinct settings:

The edge development fronting New South Head Road which contains substantial residential flat building well setback behind sandstone walls, garages and steps; development opposite the Rose Bay Promenade on New South Head Road, typically large attached dwellings with their landscape settings; and the predominating 1-3 storey residential houses and flat buildings set in the winding streets that follow the contours of the landscape. … This precinct also contains two large private school campuses. 33 The desired future character objectives in the DCP for this precinct include: o To maintain a transition of development scale from the residential flat buildings that address New South Wales Head Road, to the residential houses and flat buildings that dominate the majority of the precinct; o Development is to respond in form and siting to the street and subdivision pattern; o To reinforce the precinct's landscape setting by minimising alterations to the landform and preserving the existing tree canopy; o To maintain mature street trees, grassed verges and garden plantings; o To protect important views from the public spaces of the precinct to the harbour, the city skyline and to the surrounding districts; o To maintain the evolution of residential building styles through the introduction of good contemporary buildings; o To ensure that residential development addresses the street; o To ensure the precinct's tree canopy continues to form a green backdrop when viewed from Sydney Harbour and the surrounding districts. 34 The Performance Criteria for the Precinct and its desired future character is that development respects and enhances the existing elements of the local neighbourhood character including: o The rich mixture of residential architectural styles and forms including freestanding houses and apartment buildings; o Building set within highly visible gardens; o Buildings addressing the street; o The tree canopy formed by both street and private yard plantings. 35 The building footprint for a residential flat building is limited to the percentage of the site area indicated on the precinct map and for the subject site this is 35%. The proposal has a 30% site coverage. The side boundary setback must be a minimum of 2.5 m, and increase on a pro rata basis by 0.5 m where the building exceeds 5.5 m in height adjacent to the boundary. The proposal also complies with this control.

36 The performance criteria for the location of garages are such that they should not be designed and located so as to dominate the streetscape and carparking structures and garages are to be provided behind the building line and limited to a width as presented to the street no greater than 30% of the site frontage where the frontage is more than 20 m.

37 The DCP objectives for car parking and driveways are: 0 5.9.1 To limit the amount of site excavation for the purpose of car parking. 0 5.9.2 To provide convenient and safe car parking and access while encouraging alternative modes of transport, particularly walking and cycling. 0 5.9.3 To ensure that on-site car parking and driveways do not dominate or detract from the appearance of the development and the local streetscape. 0 5.9.4 To limit the adverse temperature and stormwater run-off impacts of impervious surfaces. The performance criteria for site excavation are: C 5.9.1 The area of site excavated for the purposes of underground car parking is limited to the building footprint of the development and the site excavation requirements contained in Section 5.2. Building Size and Location. C5.9.2 In order to avoid the need for mechanical car lifts and associated excavation, car parking for developments on the lower side of the street is to be provided on the upper levels of the building. Performance criteria for on-site car parking are: C 5.9.9 The arrangement of parking spaces and driveways allow vehicles to enter and leave the site in a forward direction where 4 or more car spaces use 1 driveway that connects to a street carrying more than 3,000 vehicles per day. C 5.9.16 Car parking and driveway areas are located and designed to: o Enable the efficient use of car spaces and accessways, including safe manoeuvrability for vehicles between the site and the street; o Fit in with any adopted street network hierarchy and objectives of the hierarchy and with any related local traffic management plans; o Preserve significant trees and vegetation; and o Complement the desired future character for the locality described in Part 4.

38 The general controls are set out in Pt 5 of the DCP and provide guidelines for streetscape, building size and location, open space and landscaping, fences, energy efficiency, acoustic and visual privacy, carparking and driveways.

39 State Environmental Planning Policy No. 65 (SEP 65) also applies to the proposal and this references the "Residential Flat Design Code" book that provides rules of thumb relating to amenity for a proposal, for example, light and ventilation, solar access and floor to ceiling heights.

40 In my assessment of the development application I have had regard to council's LEP and the Development Control Plan for Residential Development as well as provisions of SEPP 65 and the Residential Flat Design Code.

Issue 2 --swimming pools has been resolved by the deletion of the pools from the amended plans to which the council raised no objection. There is no issue with respect to the extent of deep soil areas for landscaping as the proposal exceeds the 40% minimum site area for deep planting.

41 Issue 3 concerning the lack or inaccurate information has been addressed by the experts and the amended plans also addressed anomalous or insufficient details and these matters have also been discussed during these proceedings. The planners further conferred following the site inspection on the solar access for the proposed units 4 and 5. Overshadowing to adjoining properties is not an issue.

42 Following the conference Ms McCabe agreed that unit 4 will exceed the 3 hours minimum sunlight required under SEPP 65 totalling about 4½ hours of solar access with the north-western side receiving sunlight from 10.30 to 1 pm and western elevation being in full sun to 3 pm. For unit no. 5 Ms McCabe and Mr Brenchley agreed that there would not be a full 3 hours of solar access to the living area of unit 5. Between 9 and 10 am approximately 10% of the eastern elevation receive sunlight and this increase is between 10 and 10.30 am to 90% and 100% between 10.30 and 11.30 am. The living terrace receives full solar access between 11.30 and 12.30 pm when it starts to reduce. The bedroom terrace on the eastern elevation receives sun up until 12.30 pm for approximately 2½ hours.

43 State Environmental Planning Policy No 65 requires that 70% of units receive a minimum of 3 hours sunlight to living areas, and in dense urban areas a minimum of two hours may be acceptable. Council's DCP does not contain a requirement for 3 hours solar access. Having regard to the site constraints and the fact that four out of five units more than meet the minimum 3 hours solar access and the 5th unit receives 2½ hours of solar access, I am satisfied on balance that this would not warrant refusal of the application. Clearly it is desirable for all units to receive maximum solar access mid winter. However, in urban environments with medium density this is not always achievable and the State Policy recognises this with a requirement for 70% of all units having a minimum of 3 hours solar access.

44 Issue 4 has been resolved by the amended plans that now shows compliance with the 0.65:1 floor space ratio.

45 Issue 5 concerning the dimensions of the off street parking spaces has also been resolved by the amended plans. The number of visitor carparking spaces does not strictly comply with council's Development Control Plan that requires 1.25 spaces rounded up to 2 spaces and the proposal provides for one visitor carparking space. I agree with the experts that there is capacity within the street. Furthermore, the proposed development will see the deletion of one gutter crossing.

46 The next issue council raised was that the development does not comply with the council's DCP for carparking as the proposed bridge allowing access from the street to the car lift will only permit one car to wait on site for the lift and a second car may be forced to queue over the footpath or in Bellview Road potentially resulting in unsafe manoeuvres by vehicles and/or undesirable traffic impacts.

47 Mr Varga and Mr Hutcheson agreed that the car lift door should be widened to 2.5 m and that the car waiting area be widened to 6 m towards the north-west. Mr Brenchley also provided information on the car lift as to the reliability stating that he had designed other buildings with similar lifts and in the event of a failure the call out time is approximately 15 minutes. He provided a memo from the supplier with details of the lift performance in terms of the time the lift takes and the turn around time is 90 seconds. An example of an existing operational lift is the area apartments at Kiribilli installed 3 years ago. This travels 17 m with 3 openings servicing 12 vehicles. Mr Brenchley also refereed to other developments that have been approved with lifts for basement parking including one in Benalong Crescent which is built and operational.

48 Both Mr Varga and Mr Hutcheson agreed that the amount of traffic/ cars generated by the proposed development would not lead to traffic problems in Bellevue Road and with a 90 second round trip that is for a car to enter exit and another car to enter and exit the site and adding on a safety factor of an additional 50% in time that is a maximum waiting time of 3 minutes. Given the expected car movements generated by the proposal the lift mechanism to access the basement parking is acceptable and would not impact on the movement of traffic in the area.

49 Mr Varga said that it would be a rare occurrence if a visitor had to back out of the driveway access on to the street because the visitor space was taken. Nonetheless he was not concerned about reversing on to Bellevue Road given the large gaps in the traffic flow. Widening the drive to 6 m would allow two vehicles to stand in the drive. The council's consultant traffic engineer also stated that "it is my opinion that provided the driveway is widened and the entry door width is conditioned to be a minimum of 2.4 m, than the car lift and access arrangements will be acceptable."

50 The Court inquired as to whether council had a policy on car lifts and at this stage there is no such policy.

51 The final issue in council's statement of issues relates to matters raised by residents. The proposal is all but one from the boundary of the Residential 'A' area of Bellevue Hill and from the view it can be seen that the area is characterised by large dwelling houses with the exception of the town houses at the rear of the site which are on a significant mean low and level. SEPP 65 requires an assessment of the proposal against 10 design principles and this includes context and it is also noted that the DCP has an objective for the Bellevue Hill North Precinct to provide a transition of development scale from the residential flat buildings to the residential houses.

52 In my assessment I agree with the council officer's report and the Court-appointed experts' assessment that the design of the proposal is appropriate for its context and provides an appropriate bulk, sale and height in the streetscape and from adjoining premises. The proposal complies with the 0.625:1 FSR, and the minimum side setback controls. Furthermore, I am satisfied the proposal does not create adverse impacts on adjoining properties and it will sit comfortably in the streetscape and in the context of existing development of the area.

53 The design of the proposal provides a built form that will continue to contribute to the character of the streetscape while providing satisfactory internal amenity and outlook from each of the five units having regard to the topography and the predominant building form in the locality. The relationship of the proposal to the properties fronting Carlotta Road including the townhouse development to the rear is also satisfactory in my assessment. The setbacks from the rear boundary are 8 m to the balconies and over 15 m to the wall face of the proposal, and with the landscaping proposed and the separation distances between buildings I am satisfied no unreasonable impacts are created.

54 The proposal is commensurate with development contemplated by the Council's controls and the State Policy. The proposal provides for the amenity of adjacent properties to be reasonably maintained while at the same time providing good design and amenity for future residents of the proposal. The proposed development will also not be out of character with the existing detached dwelling character of Bellevue Road that is predominantly larger two and three storey homes.

55 The relationship of the proposal to the properties to the rear has also been considered in the design to afford the adjoining properties reasonable levels of privacy by orienting the living areas away from the adjoining townhouse development that is located within close proximity to the common boundary. To further ameliorate the potential for overlooking, horizontal louvred screens are proposed. Additional trees have been located along the eastern and western boundaries to provide for additional screen plantings. Nonetheless, I am satisfied that the proposal does not rely on the landscaping to afford the adjoining properties an adequate degree of privacy. However, the landscaping will contribute to the leafy environment and character of the area.

56 It is often the case that residents will not embrace new development and development often results in change. It is the role of the Court, however, to assess whether the impacts are reasonable and whether the proposed development will contribute to the existing and future character of the area and that it is not incompatible or inconsistent with the objectives articulated by council's planning regime. In particular, the objectives of the LEP and the zone and the DCP performance criteria.

57 I am satisfied that the proposal as shown in the amended plans before the Court is a development that is both harmonious with the character of the area and will result in a development that is of good design with minimal impacts on the surrounding environment.

58 In conclusion on the basis of my assessment above, I make the findings of fact that, apart from the need to satisfy me in terms of cl 25(2) of the Woollahra LEP, I would be prepared to determine the application by the granting of development consent. However, in terms of cl 25(2) I am not satisfied on the evidence before me, and for this reason the application should be rejected.

59 I am of the opinion that the Court, as the consent authority, in terms of cl 25(2), must be satisfied before granting consent that adequate provision has been made for the disposal of stormwater from the land. I understand that the words "to determine" means that having decided to grant consent the final orders may be withheld for appropriate reasons. However, I have insufficient evidence on the fundamental issue of drainage disposal from the site to determine in the affirmative that consent should or could be granted at this stage.

60 However, in fairness to the applicant in the circumstances, I would be prepared to refer a question of law to the Chief Judge for determination with the above findings given that the parties agreed that the issue of drainage was not a matter for my consideration during these proceedings, and would be dealt with by the Court in the s40 easement application. The applicant relies on the judgment of his Honour Bignold J in Billgate, however as noted above, the circumstances and facts set out by his Honour are quite different to those in the matter before me.

61 Since advising the parties of the above findings the applicant has requested the matter be re-opened for the opportunity to provide further evidence on drainage. The respondent does not object, noting that a suitable time frame would be required to advise residents and for an assessment by council experts. I have decided that the applicant's request to re-open the matter be granted.

62 I have also decided it is prudent to refer the question of law attached to the Chief Judge under s36(5) of the Court Act (as provided to the parties at the mention today 26 October). The parties were also given the opportunity to comment and the applicant has forwarded a question, also attached, and the respondent raises no objection. As indicated at the mention today I will refer both questions to the Chief Judge.

63 In the circumstances of the case this parallel course of action is appropriate to provide clarity to the operation of cl 25(2) of the Woollahra LEP and s 40 of the Court Act. Furthermore, for this current appeal, in the event that the drainage information is insufficient to satisfy me in terms of cl 25(2), or indeed if this clause is not capable of being satisfied without first obtaining a drainage easement, then the matter would still require a Judge of this Court to determine the questions of law.

              J S Murrell
              Commissioner of the Court
              rjs

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