Conclusions
26Having considered the evidence, the submissions and undertaken a view, I note that the main merit contention raised by council concerns the suitability of the proposed drainage arrangements, otherwise the proposal merits conditional consent. In this regard, the parties agreed to a general decision-making process to consider the relative balance between the competing elements. My application of that process is as follows.
27The first element involves the consideration of the relevant planning controls. In this case, the LEP permits this type of dual occupancy development with consent in the 2g Residential - General zone and no issues were raised regarding the merits of the building components. Accordingly the applicant refers to the matter of BGP Properties Pty Limited v Lake Macquarie City Council [2004] NSWLEC 399, where McClellan CJ considered the question of what weight should be given to the zoning of a site when considering an application for a development on it. At para 117, he said (omitting the case citations):
In the ordinary course, where by its zoning land has been identified as generally suitable for a particular purpose, weight must be given to that zoning in the resolution of a dispute as to the appropriate development of any site. Although the fact that a particular use may be permissible is a neutral factor, planning decisions must generally reflect an assumption that, in some form, development which is consistent with the zoning will be permitted. The more specific the zoning and the more confined the range of permissible uses, the greater the weight which must be attributed to achieving the objects of the planning instrument which the zoning reflects. Part 3 of the EP&A Act provides complex provisions involving extensive public participation directed towards determining the nature and intensity of development which may be appropriate on any site. If the zoning is not given weight, the integrity of the planning process provided by the legislation would be seriously threatened.
28On the basis of this authority, the applicant's expectation that a complying development should be approved is not unreasonable, particularly as the objectives of the Plan appear to be reasonably satisfied.
29With regard to the primary issue of drainage, the relevant controls are contained within the DCP and Policy. In cl 3.4.2 of the DCP, the relevant objective is:
- To minimise flooding impacts created by new development and additional hardstand...
30The associated design principles are to utilise WSUD to keep the balance between infiltration and runoff from individual sites as close as possible to pre-development flows. The WSUD is to incorporate permanent and temporary storage of stormwater on the urban allotment, reducing the peak flow and volume of water that leaves the site. It should also incorporate measures to improve water quality runoff. The design principles also provide:
"Techniques to reduce flow velocities and volumes can be achieved through the use of rainwater tanks, natural infiltration, surface storage and infiltration into aquifers".
31From reference to the aforementioned Table 1, I am satisfied that the applicant's option 3 should reduce downstream discharges for a representative range of storms. I therefore accept Mr Payne's opinion that this satisfies the 3.4.2 objectives. Furthermore, it does so in a way, which incorporates the nominated WSUD techniques.
32Insofar as Mr Mcilveen accepts the Table 1 results, he still does not support this option and relies on the following provisions of the Stormwater Policy to require Option 1 to prevail:
2 For Infill Development
For other than single residences, all infill development be required to discharge stormwater (over and above that captured for re-use) to or by way of an approved gravity drainage facility other than directly to a rubble drain. This may require the creation and piping of an interallotment stormwater drainage easement.
33It seems to me that in the hierarchy of planning controls this policy would be given less weight than the DCP provisions. But in any case this policy allows reasonable discretion. The engineers agree that Option 3 represents a "gravity drainage facility". Whilst the policy refers to discharge via piping in an interallotment easement may be required, this is not mandatory.
34Accordingly, I am satisfied to rely on the opinion of Mr Payne that the proposed Option 3 will reduce drainage discharges downstream and the proposed structure will more evenly distribute excessive flows over the weir, rather than the existing concentration of drainage towards the rear NW corner. Therefore the proposed drainage reasonably satisfies the controls, in my assessment.
35Apart from this, I note that Mr Mcilveen's primary concern seemed to be the avoidance of flooding risk in the circumstances of downstream flooding due to some extraordinary storm event. His approach would effectively translate to 'no risk' at all being be tolerated. However, I do not consider the set of controls is that restrictive, instead the objective is to " minimise " flooding impacts, which Option 3 achieves. Therefore on this basis, it warrants conditional consent being granted.
36With respect to the orderly development considerations, unfortunately there is no overall drainage strategy to coordinate future drainage required as a result of development in accordance with council's planning controls. Insofar as there was some speculation about an IAD system, there was no compelling evidence of council's commitment to such a scheme. In the circumstances then, I do not consider the piece - meal approach advocated by Mr Mcilveen, that individual developments each install their own disposal pipelines along various easements to Yugura Street represents economic and orderly development.
37My finding on the disputed condition 6 is that it is appropriate in the circumstances of this case to follow authority set out in Cavasinni . Accordingly, it is apparent that s80A prescribes the circumstances for the imposition of conditions. I accept Mr Bradbury's submission that this section does not refer to s64 of the LGA.
38As it is not possible to impose the subject contributions under the provisions of s94 of the EP&A Act, the only other avenue is via the s79C(1) route. But I do not consider that the council has adequately demonstrated which matter in s79C(1) that the condition relates to. The reference to 'a planning purpose to ensure the development is appropriately serviced for both water and sewerage' is not obvious in the s79C(1) matters for consideration.
39Therefore, I rely on the submissions of Mr Bradbury that in this case, there does not appear to be power to impose condition 6 and therefore it is deleted. Insofar as reference was made to other developments where similar contribution conditions were imposed and accepted, the court was not informed of the circumstances of those matters and I do not consider them as any sort of precedent.
40I consider condition 5 should be modified to allow the applicant's Option 3 but it should also require the imposition of a positive covenant to ensure the maintenance of the drainage weir and infiltration area. It seems to me that in the circumstances of this case, the provision of this internal drainage system is a fundamental part of the consent and all prospective property owners/occupiers should be made aware of their responsibility to maintain the system, which is located within the open space area for Unit 2. Ideally, some form of self-regulation is desirable whereby the owner/occupier periodically notifies council that all components of the drainage have been maintained in accordance with the approved design.
41Insofar as the parties submitted alternative wording for condition 20, this condition deals with works to be carried out in the public road and therefore a Section 138 consent is required. I am aware the issue of such consent requires certain condition to be met and as there is no evidence to confirm this, I consider the council's alternative condition reasonable and appropriate.
42For these reasons then, I am satisfied the development reasonably satisfies the relevant objectives and design controls to merit consent.
43Having considered these findings, the parties have now agreed to additional conditions to address the outstanding matters to now allow the following orders to be made.