Castagnet Investments Pty Ltd v Woollahra Municipal Council

Castagnet Investments Pty Ltd v Woollahra Municipal Council - [2005] NSWLEC 553 - NSWLEC 2005 case summary — Zoe

[13]

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.

[16]

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.

[35]

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.

At a glance

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Judgment (66 paragraphs)

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Cases Cited (1)