The Applicant disagrees that the Proposed Modification cannot be approved because it is in breach of Section 1, Part 4.1 of the Development Engineering Design Guidelines which stipulates an easement for 'sites that fall away from the street, or are flat', and 'filling of sites is not permitted to achieve gravity drainage'. Rather, the Applicant's submission is that Mr Bacha's opinions should be adopted which state the following in summary:
[2]
"92. ...the Guidelines do not address cases like the Site where there is an existing ridge splitting the Site into two catchments falling opposite directions: at [6]. Mr Bacha relies on Section 4.1.4 of the Handbook, which provides (see Council's Bundle, Tab 18, 403):
[3]
Where possible, the drainage system should be designed to direct runoff from the entire site to the OSD system. Sometimes, because of ground levels, the receiving drainage system or because of other circumstances, this will not be feasible. In these cases up to 15% of the site may be permitted to bypass the OSD systems, provided that as much as possible of the runoff from impervious site areas is drained to the OSD system. ...
[4]
93. The Proposed Modification only results in 4% of the Site (which is agreed) bypassing the OSD system and that whole area is pervious so no adverse impacts will occur on neighbouring properties: at [6]."
[5]
"75. ...Section 4.1.4 of the Handbook enables 15% of a site to bypass the OSD system if as much as possible for the impervious surfaces is drained to the system. As only 4% of the Site is not drained to the OSD system and 100% of the impervious areas on the Site will be connected to the system, Mr Bacha considers that the system is compliant with best practice."
[6]
Mr Poisel submits that Mr Bacha's interpretation is supported by the last paragraph of Section 4.1.4 of the Handbook, which provides (Tab 18, Ex A):
[7]
"For areas not draining to an OSD storage, the storage volume is still calculated on the entire site area while the PSD is adjusted downwards according to the procedures in Section 5. This makes sure the storage is fully used in the design storm."
[8]
Mr Poisel's final submissions on the additional particulars in Contention 4(f) are as follows:
[9]
"First bullet point: As part of the redevelopment of the Site, it has to be drained either to the front (ie east), the rear (ie west) or the south (ie south). The Proposed Modification seeks to drain to the front (ie Kissing Point Road). The Applicant cannot drain to the west because to the west of Lot 13 is a public reserve over which there is a general prohibition for such an easement under the PDCP 2023 and the Court has cast doubt on the ability for the grant of an easement under s 88K over community land: Aussie Skips Recycling Pty Ltd v Strathfield Municipal Council[2020] NSWCA 292. The Applicant cannot drain to the south through the School Land as the Department has refused an easement and it would be inappropriate for 153m pipe and, in an emergency, either uncontrolled flows through the School Land or a swale or open channel.
[10]
Second bullet point: A swale can be conditioned along the driveway of the Site providing access to Lot 13. The Applicant's primary position is such a condition is not necessary, however it is willing to accept it.
[11]
Third bullet point: Emergency overflows have been considered and the vast majority of the Site drains to Kissing Point Road. There is the potential for some emergency flows from Pit 12 to drain across Lot 13, however this condition already exists.
[12]
Fourth bullet point: The Site does not fall away from the street (as conceded by Mr Warda).
[13]
Fifth bullet point: The Proposed Modification will not have an adverse impact on adjoining properties on the understanding that adverse requires a worsening of the current condition. The Proposed Modification improves the stormwater management for downstream properties.
[14]
Sixth bullet point: The Applicant repeats its submissions above."
[15]
Mr Poisel concluded in the Applicant's submissions that:
[16]
"the implementation of the approved stormwater system is not practical or feasible in circumstances where the Department has not agreed, the Applicant would need to commence expensive s 88K proceedings at its cost (for both sides), the Council's evidence is that the approved system is not best practice, a 153m pipe would be installed and, in an emergency, students will be put at risk by an uncontrolled discharge or, alternatively, a 153m swale or open channel running through the middle of a playground would be required."
[17]
Whether the alternate stormwater discharge system is adequate:
[18]
The issues that I must resolve between the engineers and the evidence to decide whether the modified OSD system is adequate to justify deletion of the deferred commencement condition are:
[19]
(1) Contention 4(b) - the proposed system fails to drain the whole site to a legal discharge point contrary to the Respondent's Development Engineering Design Guidelines: Section 1, Part 2.0 General Requirements;
(2) Contention 4(c) - the development concentrates flows over downstream property without an easement contrary to the Respondent's Development Engineering Design Guidelines: Section 1: Part 4.1; and
(3) Contention 4(d) - the proposed system proposes a significant extension of Council's stormwater system contrary to the Respondent's Development Engineering Design Guidelines: Section 1: Part 4.1.
[20]
Observations I made on Site on factual matters of relevance that I have discussed above at paragraph [4] and which inform my consideration of the experts opinions are as follows. My observations are supported by the evidence being the Survey (tab 17, Ex A) and the Revised Stormwater Concept Plans (Ex A, tab 14):
[21]
(1) The Site is not 'flat';
(2) The Site does not 'fall away from the street' and Kissing Point Road falls away to the south east from the legal discharge point in the gutter; and
(3) The 'predevelopment topography' of the Site is significantly altered as it contains among other structures to be demolished a deep empty swimming pool and is not a reliable reference for stormwater design.
[22]
In my opinion Council's contentions rely on a strict application of the relevant controls which is not supported by the evidence and a consideration of all the facts and circumstances of this appeal and the Approved Development. I find that Mr Warda's approach is too rigid an application of the discretionary controls and guidelines, that are not intended to be, nor could be, a one size fits all mandatory requirement for stormwater management and engineering.
I accept the evidence of Mr Barcha and find his reasoning sound in the application of the PDCP 2023 and non-statutory controls to the subject site and the proposed modifications with reference to Council's contentions and issues raised under cross examination. I accept and agree with the Applicant's analysis of the evidence and conclusions drawn: see paragraphs [54 - 58] above.
Given the concessions made by Mr Warda under cross examination, noted above at para [54], it is no surprise that the Council conceded at the close of the evidence that the design was appropriate. However, that concession came with a catch. Council still requires an easement to drain the rear of the site through the school. Council proposed orders that reflected that position, quoted above at paragraph [52].
I do not agree with a hybrid system as proposed by Council whereby the mandatory requirement for a drainage easement over the school land at the rear remains in place but that the OSD be modified as per this Proposed Modification. It is not supported by the evidence and would not achieve a satisfactory outcome for this Site. Under this scenario, nothing can happen on the Site until the deferred commencement condition is satisfied. It would appear pointless to carry out the work in modifying the OSD system to drain 96% of the water on Site to the legal discharge point in the street in addition to a drainage easement to the rear, if that is successfully obtained from the NSW Department of Education (having been refused once).
In my respectful opinion with the OSD remodelled to the current proposal, it is highly likely the NSW Department of Education would again form the opinion, (see letter from the Department of Education at Tab 19 of Ex A), that among other reasons, a s88K easement over the Ermington West Primary School land, adopting the words of the jurisdictional test in s 88K(1) of the Conveyancing Act, is not "reasonably necessary for the effective development of the land (the Site)". See the analysis by the Court of Appeal in Gordon v Lever (No 2)(2019) 101 NSWLR 427; [2019] NSWCA 275, where the President, Justice Bell, at [35] said "Implicit in the concept of reasonable necessity is a consideration of the alternative methods by which the proposed use or development could be achieved". Apart from the other concerns the NSW Department of Education had, refusal would seem highly likely just for the purpose of collecting only 4% of the stormwater from the Site.
In summary for the above reasons and with reference to but not limited by the issues listed at paragraph [59], I find based on the evidence and my own observations on site; firstly the proposed system drains all but 4% to the legal discharge point which is acceptable and meets best practice taking into account the circumstances of the Site; secondly, the development does not concentrate flows over downstream property; and thirdly, the proposed system does not cause a significant extension of Council's stormwater system. Having regard to C.05, C.06 and C.14 of the PDCP 2023, there are no adverse impacts on Council's stormwater system and surrounding properties. In my opinion C.25 of the PDCP 2023 does not apply.
The Council has failed to make good the contentions on the evidence and I find that an easement to drain water to the rear is not required as the proposed modification to the approved stormwater system is adequate.
[23]
Contention 2 - unencumbered space - evidence & controls
[24]
The Proposed Modification application to the OSD system results in a reduction in the total unencumbered outdoor play area to 528 m2 and consequently the application includes a reduction in numbers of children from 78 to 75.
Two changes to the outdoor area, the inclusion of Pit 7 and a retained area around the tree at the rear, were concerns of the Council raising this Contention.
Council was initially concerned that Pit 7 should not be allowed inside the unencumbered play area as it posed a risk to children. It was agreed ultimately by the engineering experts that it could be designed in a manner which was safe for children and dealt with in the appeal by a condition of consent (Joint report, Ex J).
Regarding the proposed retained area around the tree at the rear, identified by the experts as the area between the proposed retaining wall and the acoustic fence (hatched in red on the plan from Ex E reproduced in part in Mr Harker's submissions as Figure 1 following). Mr Wan (Council) said that it was not suitable for children and should be excluded as outdoor space because of the change in levels, lack of surveillance and limited suitability due to its gapes and narrowness (Joint Report, Ex E, [5]). If that red area is encumbered space as Council maintains, it reduces the available unencumbered space to 519 m2 which permits one less child space, i.e. to 74 children.
[25]
Figure 1: Diagram of only area of unencumbered spaces left in dispute hatched in red [reproduced from Mr Harker's submissions] .
[26]
Mr Barwick's evidence was that that the red hatched area at the rear will be finished with play mulch and stepping stones, and could be given further play utility if the retaining wall is fitted with climbing holds (Ex E, [12]). He considered that child care staff will have "ready view" into the area from numerous vantage points in the open space play area and as such a lack of surveillance opportunities does not arise (Ex E, [14]).
The planning controls for the amount of outdoor space required in a child care centre are as follows.
Section 3.26 of T&I SEPP imposes non-discretionary development standards in relation to childcare facilities.
Relevantly, it states at s 3.26(2)(b) that:
[27]
(i) for development to which regulation 107 (indoor unencumbered space requirements) or 108 (outdoor unencumbered space requirements) of the Education and Care Services National Regulations applies - the unencumbered area of indoor space and the unencumbered area of outdoor space for the development complies with the requirements of those regulations ...
[28]
Regulation 108 of the E&CSN Regulations relevantly provides:
[29]
(2) The approved provider of an education and care service must ensure that, for each child being educated and cared for by the service, the education and care service premises has at least 7 square metres of unencumbered outdoor space.
[30]
(3) In calculating the area of unencumbered outdoor space required, the following areas are to be excluded -
[31]
(a) any pathway or thoroughfare, except where used by children as part of the education and care program;
[32]
(d) any other space that is not suitable for children.
[33]
I accept the reasoning of Mr Harker that the consideration of the standards in the T&I SEPP and E&CSN Regulations is required by s 4.55(3) EPA Act which states that the Court (as consent authority) must take into consideration such of the matters in s 4.15(1) of the EPA Act as are of relevance to the development the subject of the (modification) application. That includes in s 4.15(1)(a)(i) 'any environmental planning instrument'. Mr Poisel presented an argument to the contrary which I respectfully do not agree with as a matter of statutory construction. I note Mr Poisel made submissions on this contention in the event he be wrong.
[34]
Whether the approved numbers for children should be 74 or 75
[35]
Council's town planner, Mr Wan, is of the opinion that the space is 'not suitable for children' as per reg 108(3)(d) of the E&CSN Regulations for the reasons set out above and should be deleted or the numbers reduced to 74.
Mr Wan and Mr Barwick were cross examined about the suitability and safety or otherwise of the red hatched area (figure 1 above) to be included in the unencumbered outdoor play area of the Proposed Modification to the existing approved child care centre. I have carefully considered the evidence given and have come to the conclusion that I prefer Mr Barwick's evidence and consider that disallowing that area as outdoor space or deleting one child space is not justified by the evidence. Allowing some challenges in the playground environment for the children could equally be construed as suitable in terms of reg 108. In any event, to meet Council's concerns, changes to the outdoor fit out were proposed by the Applicant as additional conditions of consent, 1A and 1B in Ex L. I find that draft conditions 1A and 1B should be incorporated into the consent conditions as part of this modification application.
I note the discussion by Justice Robson in an appeal in respect of a child care centre of the requirements under the E&CSN Regulations made under the Children Education and Care Services National Law Application) Act 2010: Omid Mohebati-Arani v Ku-ring-gai Council[2017] NSWLEC 143, at [97] to [99].
It follows that condition 88 should be amended to read "The number of children within the childcare centre is not to exceed 75 children at any time_"_.
[36]
Taking into account my reasons and all the facts and circumstances of the matter it follows that the Proposed Modifications to the approved stormwater system which by design dispense with the need for an easement to drain water to the rear of the Site, are satisfactory to the Court. Therefore, the Condition 1 deferred commencement condition of the Consent, requiring an easement under s88K of the Conveyancing Act, should be deleted.
As the modified stormwater system requires some changes to the outside space on the Site, the Applicant recognised the approved numbers of children for the development would need to be reduced. Accordingly condition 88 of the Consent is to be amended from 78 to 75 children for the reasons set out above.
The amended conditions proposed by the Applicant in [Ex K] are adopted and are set out in the orders made by the Court in Annexures A and B.
The Court orders that:
[37]
(1) The appeal is upheld and the Modification application, as amended, is granted.
(2) Development consent No. DA/399/2020 is modified in the terms in Annexure A.
(3) Development Consent No. DA/339/2020 as modified by the Court is Annexure B.
(Education and Care Services National Law Application) Act 2010
Planning and Assessment Act 1979
Environment Court Act 1979
Education and Care Services National Regulations 2011
cussion by Justice Robson in an appeal in respect of a child care centre of the requirements under the E&CSN Regulations made under the _Children Education and Care Services National Law Application) Act 2010
Cases Cited (12)
JudgmenT
COMMISSIONER: This is a Class 1 appeal directly to the Court pursuant to s 4.55(8) of the Environmental Planning and Assessment Act 1979 (EPA Act) and s 17(d) of the Land and Environment Court Act 1979 (LEC Act) to modify, pursuant to s 4.55(2) of the EPA Act, development consent No DA/399/2020 (the Consent) granted by the Court on 8 June 2021 following a s34 Conference: Elias v Parramatta City Council [2021] NSWLEC 1332. The Consent was granted by the Court for the demolition, tree removal and construction of a two-storey 78 place child care centre with basement car parking (Approved Development) on land at 379 Kissing Point Rd, Ermington NSW, known as Lot 12 DP 869307 (the Site).
The Class 1 appeal was commenced on 19 December 2022 and with leave of the Court, the Applicant amended the Modification Application on 29 June 2023 and again on 27 September 2023.
Section 4.55(2)(a) "Substantially the same" test
The power to modify a consent is a power "to alter without radical transformation" the consent: Scrap Realty Pty Ltd v Botany Bay City Council [2008] NSWLEC 333; (2008) 166 LGERA 342. The result of the comparison between the original consent and the consent as modified must be a finding that the development is "essentially" or "materially" the same as the approved development: Arrage v Inner West Council [2019] NSWLEC 85; Van Mourik v Mosman Municipal Council [2023] NSWLEC 1599.
The Proposed Modification in my opinion results in a development which is substantially the same as originally approved because the proposed modifications:
1. Maintain the proposed use, overall maximum height and general envelope of the proposed child care centre building & associated structures;
2. Proposes a minor change in the number of children it can accommodate from 78 to 75 which is not material to the overall use and development and if anything, is of a lesser impact on neighbours;
3. Although there will be minor changes in the landscaped area, including the removal of a tree, the changes will not be material in the streetscape; and
4. The Consent already has provision for an approved pump out OSD system for stormwater disposal and the changes to the OSD system are not such that it could be argued a material change has occurred and the development is not 'substantially the same development' as the Consent originally granted by the Court.
Council did not argue that deleting the deferred commencement condition for a s88K easement breached the s 4.55(2)(a) EPA Act jurisdictional test. Deleting the condition to acquire an easement (which was refused by the NSW Department of Education) requires remodelling the OSD system and landscaping changes but as I have said above, those changes do not result in a development that is not substantially the same. Deleting the condition is a legal change at best but does not materially alter the physical and developmental aspects of the proposed child care centre on the Site. It is to be remembered that the power to modify is beneficial and facultative: Houlton v Woollahra Council (1997) 95 LGERA 201 at 203; North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468; at 475 and 482. The Applicant has tried to satisfy the deferred commencement condition and the application was refused (Tab 19 of Ex A).
In submissions Mr Poisel summarised the oral evidence from the Council's engineer MW Mr Warda as follows:
"In cross-examination, Mr Warda accepted the following propositions:
Pit 12 is increased in size to 600mm x 600mm which is an improvement to the approved system;
the proposed OSD system would divert stormwater from the Site to the tank at the front of the Site (ie east) before discharging the stormwater into Kissing Point Road via a 35m extension to the Council's existing stormwater infrastructure;
the Council's existing stormwater infrastructure has capacity for the Site's discharge of stormwater;
in the case of a failure of the OSD system, the Site's stormwater will still discharge to Kissing Point Road as a result of the proposed retaining wall, excepting the rear area to the west of the retaining wall (Rear Area);
the Rear Area comprises a small part of the Site (calculated at 4% by Mr Bacha);
the Rear Area is a pervious surface and excess run-off from the Site would follow the natural topography as it presently does;
the Approved Development / Proposed Modification will not result in the diversion or concentration of stormwater to downstream properties; and
the Proposed Modification is better than the Approved Development and the current conditions from a stormwater management perspective."
The Applicant disagrees that the Proposed Modification cannot be approved because it is in breach of Section 1, Part 4.1 of the Development Engineering Design Guidelines which stipulates an easement for 'sites that fall away from the street, or are flat', and 'filling of sites is not permitted to achieve gravity drainage'. Rather, the Applicant's submission is that Mr Bacha's opinions should be adopted which state the following in summary:
"92. ...the Guidelines do not address cases like the Site where there is an existing ridge splitting the Site into two catchments falling opposite directions: at [6]. Mr Bacha relies on Section 4.1.4 of the Handbook, which provides (see Council's Bundle, Tab 18, 403):
4.1.4 Areas not directed to the OSD storages
Where possible, the drainage system should be designed to direct runoff from the entire site to the OSD system. Sometimes, because of ground levels, the receiving drainage system or because of other circumstances, this will not be feasible. In these cases up to 15% of the site may be permitted to bypass the OSD systems, provided that as much as possible of the runoff from impervious site areas is drained to the OSD system. …
93. The Proposed Modification only results in 4% of the Site (which is agreed) bypassing the OSD system and that whole area is pervious so no adverse impacts will occur on neighbouring properties: at [6]."
"75. ...Section 4.1.4 of the Handbook enables 15% of a site to bypass the OSD system if as much as possible for the impervious surfaces is drained to the system. As only 4% of the Site is not drained to the OSD system and 100% of the impervious areas on the Site will be connected to the system, Mr Bacha considers that the system is compliant with best practice."
Whether the alternate stormwater discharge system is adequate:
The issues that I must resolve between the engineers and the evidence to decide whether the modified OSD system is adequate to justify deletion of the deferred commencement condition are:
1. Contention 4(b) - the proposed system fails to drain the whole site to a legal discharge point contrary to the Respondent's Development Engineering Design Guidelines: Section 1, Part 2.0 General Requirements;
2. Contention 4(c) - the development concentrates flows over downstream property without an easement contrary to the Respondent's Development Engineering Design Guidelines: Section 1: Part 4.1; and
3. Contention 4(d) - the proposed system proposes a significant extension of Council's stormwater system contrary to the Respondent's Development Engineering Design Guidelines: Section 1: Part 4.1.
Observations I made on Site on factual matters of relevance that I have discussed above at paragraph [4] and which inform my consideration of the experts opinions are as follows. My observations are supported by the evidence being the Survey (tab 17, Ex A) and the Revised Stormwater Concept Plans (Ex A, tab 14):
1. The Site is not 'flat';
2. The Site does not 'fall away from the street' and Kissing Point Road falls away to the south east from the legal discharge point in the gutter; and
3. The 'predevelopment topography' of the Site is significantly altered as it contains among other structures to be demolished a deep empty swimming pool and is not a reliable reference for stormwater design.
In my opinion Council's contentions rely on a strict application of the relevant controls which is not supported by the evidence and a consideration of all the facts and circumstances of this appeal and the Approved Development. I find that Mr Warda's approach is too rigid an application of the discretionary controls and guidelines, that are not intended to be, nor could be, a one size fits all mandatory requirement for stormwater management and engineering.
I accept the evidence of Mr Barcha and find his reasoning sound in the application of the PDCP 2023 and non-statutory controls to the subject site and the proposed modifications with reference to Council's contentions and issues raised under cross examination. I accept and agree with the Applicant's analysis of the evidence and conclusions drawn: see paragraphs [54 - 58] above.
Given the concessions made by Mr Warda under cross examination, noted above at para [54], it is no surprise that the Council conceded at the close of the evidence that the design was appropriate. However, that concession came with a catch. Council still requires an easement to drain the rear of the site through the school. Council proposed orders that reflected that position, quoted above at paragraph [52].
Whether the approved numbers for children should be 74 or 75
Council's town planner, Mr Wan, is of the opinion that the space is 'not suitable for children' as per reg 108(3)(d) of the E&CSN Regulations for the reasons set out above and should be deleted or the numbers reduced to 74.
Mr Wan and Mr Barwick were cross examined about the suitability and safety or otherwise of the red hatched area (figure 1 above) to be included in the unencumbered outdoor play area of the Proposed Modification to the existing approved child care centre. I have carefully considered the evidence given and have come to the conclusion that I prefer Mr Barwick's evidence and consider that disallowing that area as outdoor space or deleting one child space is not justified by the evidence. Allowing some challenges in the playground environment for the children could equally be construed as suitable in terms of reg 108. In any event, to meet Council's concerns, changes to the outdoor fit out were proposed by the Applicant as additional conditions of consent, 1A and 1B in Ex L. I find that draft conditions 1A and 1B should be incorporated into the consent conditions as part of this modification application.
I note the discussion by Justice Robson in an appeal in respect of a child care centre of the requirements under the E&CSN Regulations made under the Children Education and Care Services National Law Application) Act 2010: Omid Mohebati-Arani v Ku-ring-gai Council [2017] NSWLEC 143, at [97] to [99].
It follows that condition 88 should be amended to read "The number of children within the childcare centre is not to exceed 75 children at any time".
Council did not argue that deleting the deferred commencement condition for a s88K easement breached the s 4.55(2)(a) EPA Act jurisdictional test. Deleting the condition to acquire an easement (which was refused by the NSW Department of Education) requires remodelling the OSD system and landscaping changes but as I have said above, those changes do not result in a development that is not substantially the same. Deleting the condition is a legal change at best but does not materially alter the physical and developmental aspects of the proposed child care centre on the Site. It is to be remembered that the power to modify is beneficial and facultative: Houlton v Woollahra Council(1997) 95 LGERA 201 at 203; North Sydney Council v Michael Standley & Associates Pty Ltd[1998] NSWSC 163; (1998) 43 NSWLR 468; at 475 and 482. The Applicant has tried to satisfy the deferred commencement condition and the application was refused (Tab 19 of Ex A).
Mr Poisel submits that Mr Bacha's interpretation is supported by the last paragraph of Section 4.1.4 of the Handbook, which provides (Tab 18, Ex A):
"For areas not draining to an OSD storage, the storage volume is still calculated on the entire site area while the PSD is adjusted downwards according to the procedures in Section 5. This makes sure the storage is fully used in the design storm."
Mr Poisel's final submissions on the additional particulars in Contention 4(f) are as follows:
"First bullet point: As part of the redevelopment of the Site, it has to be drained either to the front (ie east), the rear (ie west) or the south (ie south). The Proposed Modification seeks to drain to the front (ie Kissing Point Road). The Applicant cannot drain to the west because to the west of Lot 13 is a public reserve over which there is a general prohibition for such an easement under the PDCP 2023 and the Court has cast doubt on the ability for the grant of an easement under s 88K over community land: Aussie Skips Recycling Pty Ltd v Strathfield Municipal Council [2020] NSWCA 292. The Applicant cannot drain to the south through the School Land as the Department has refused an easement and it would be inappropriate for 153m pipe and, in an emergency, either uncontrolled flows through the School Land or a swale or open channel.
Second bullet point: A swale can be conditioned along the driveway of the Site providing access to Lot 13. The Applicant's primary position is such a condition is not necessary, however it is willing to accept it.
Third bullet point: Emergency overflows have been considered and the vast majority of the Site drains to Kissing Point Road. There is the potential for some emergency flows from Pit 12 to drain across Lot 13, however this condition already exists.
Fourth bullet point: The Site does not fall away from the street (as conceded by Mr Warda).
Fifth bullet point: The Proposed Modification will not have an adverse impact on adjoining properties on the understanding that adverse requires a worsening of the current condition. The Proposed Modification improves the stormwater management for downstream properties.
Sixth bullet point: The Applicant repeats its submissions above."
Mr Poisel concluded in the Applicant's submissions that:
"the implementation of the approved stormwater system is not practical or feasible in circumstances where the Department has not agreed, the Applicant would need to commence expensive s 88K proceedings at its cost (for both sides), the Council's evidence is that the approved system is not best practice, a 153m pipe would be installed and, in an emergency, students will be put at risk by an uncontrolled discharge or, alternatively, a 153m swale or open channel running through the middle of a playground would be required."
I do not agree with a hybrid system as proposed by Council whereby the mandatory requirement for a drainage easement over the school land at the rear remains in place but that the OSD be modified as per this Proposed Modification. It is not supported by the evidence and would not achieve a satisfactory outcome for this Site. Under this scenario, nothing can happen on the Site until the deferred commencement condition is satisfied. It would appear pointless to carry out the work in modifying the OSD system to drain 96% of the water on Site to the legal discharge point in the street in addition to a drainage easement to the rear, if that is successfully obtained from the NSW Department of Education (having been refused once).
In my respectful opinion with the OSD remodelled to the current proposal, it is highly likely the NSW Department of Education would again form the opinion, (see letter from the Department of Education at Tab 19 of Ex A), that among other reasons, a s88K easement over the Ermington West Primary School land, adopting the words of the jurisdictional test in s 88K(1) of the Conveyancing Act, is not "reasonably necessary for the effective development of the land (the Site)". See the analysis by the Court of Appeal in Gordon v Lever (No 2) (2019) 101 NSWLR 427; [2019] NSWCA 275, where the President, Justice Bell, at [35] said "Implicit in the concept of reasonable necessity is a consideration of the alternative methods by which the proposed use or development could be achieved". Apart from the other concerns the NSW Department of Education had, refusal would seem highly likely just for the purpose of collecting only 4% of the stormwater from the Site.
In summary for the above reasons and with reference to but not limited by the issues listed at paragraph [59], I find based on the evidence and my own observations on site; firstly the proposed system drains all but 4% to the legal discharge point which is acceptable and meets best practice taking into account the circumstances of the Site; secondly, the development does not concentrate flows over downstream property; and thirdly, the proposed system does not cause a significant extension of Council's stormwater system. Having regard to C.05, C.06 and C.14 of the PDCP 2023, there are no adverse impacts on Council's stormwater system and surrounding properties. In my opinion C.25 of the PDCP 2023 does not apply.
The Council has failed to make good the contentions on the evidence and I find that an easement to drain water to the rear is not required as the proposed modification to the approved stormwater system is adequate.