Gales Holdings Pty Limited v Tweed Shire Council

Judgment 1The town of Kingscliff is on the Pacific Ocean coast in northern New South Wales. The Tweed River is to the west of the town and flows approximately parallel to the coast to meet the Ocean just north of the town. In the last thirty years Kingscliff has grown from a small beachside community to a well-developed seaside resort. Its inhabitants include both permanent residents and holidaymakers. Another inhabitant of the area is the Wallum Froglet, the endangered species Crinia tinnula , the presence of which has added complexity to the dispute between the parties to this litigation. Since 1974 the plaintiff, Gales Holdings Pty Limited, has been the registered proprietor of approximately 27 hectares of undeveloped land in Kingscliff (the Land) that is in the local government area of the Tweed Shire Council, the defendant. Background 2The plaintiff's claim against the defendant, described in detail later, is for damages in nuisance. Although the circumstances relied upon span more than 30 years, the nuisance alleged by the plaintiff is that since 1994 the defendant has conducted itself so as to cause or allow untreated and polluted stormwater runoff to discharge directly and indirectly via the defendant's closed pipe system, roads, kerbs and gutters and the stormwater outlets from the local catchments onto the Land and to prevent and obstruct stormwater passing and flowing away from the Land. It is not seriously in issue that since 1994 there has been an increase in the amount of stormwater runoff flowing onto the Land. However the parties are at issue in relation to a number of the specific claims the plaintiff makes against the defendant (referred to later) and in particular whether the presence of the stormwater runoff on the Land constitutes a nuisance. 3The plaintiff claims that one of the foreseeable consequences of the increase in the levels of stormwater runoff on the Land as a result of the defendant's conduct was the occurrence of ephemeral ponding of water for periods that would result in the establishment of a habitat suitable for Wallum Froglets with the foreseeable further consequences that the Wallum Froglets would be attracted to and breed in that habitat and that the plaintiff would lose that portion of the Land for development and have to bear the burden of maintaining a habitat for the Wallum froglets. The expression "Wallum Froglet habitat" has been used in differing ways in the proceedings. It has been used to describe the physical home or habitat of the Wallum Froglet. It has also been used to describe the mix of vegetation and other environmental factors, including ephemeral ponding, to which Wallum Froglets are attracted to live and breed. The Land 4The Land is within the green boundary line in the photograph in Schedule A (Ex A) to this judgment. Turnock Street dissects the Land and the issues in the proceedings have been addressed by reference to parts of the Land being either to the north or the south of Turnock Street. Pearl Street and Kingscliff Street are to the east of the Land and Quigan Street is to the south of the Land. Turnock Street meets Elrond Drive to the west of the Land at a roundabout. Elrond Drive runs in a north-westerly direction along the south western corner of the Land north of Turnock Street. The western boundary of the Land north of Turnock Street abuts the eastern boundary of a housing estate known as "Noble Park Estate" (NPE). The northern boundary of NPE is relevant to what has been referred to as the "Northern Drain". To the north of the Land are properties referred to in the proceedings as the "Nursing Home" or "Nursing Association" and the "Bowls Club". 5Prior to the 1990s the drainage of the Land and of the Kingscliff area generally was as depicted in Schedule B (Ex B) to this judgment. Stormwater drained from the Land to the Tweed River via the Northern Drain, the Eastern Drain, the South Westerly Drain, the Natural Watercourse and the Chinderah Drain. 6The Land is zoned 2(c) under the Tweed Local Environmental Plan 2000 (LEP 2000), the primary objectives of which are to identify land for urban expansion and to ensure its optimum utilisation consistent with environmental constraints and the need to minimise residential landtake. The secondary objectives of LEP 2000 are to allow associated non-residential development to ensure that sensitive environment areas within the Zone are protected from adverse impacts of developments and to enable planning flexibility to achieve the other objectives of the Zone by means of detailed guidelines in a development control plan. One of the objectives of LEP 2000 is to "promote development that is consistent with the four principles of ecologically sustainable development" identified as: the precautionary principle; inter-generational equity; conservation of biological diversity and ecological integrity; and improved valuation, pricing and incentive mechanisms. 7The defendant is able to grant consent to development only if it is satisfied that it is consistent with the primary objective of the Zone within which the proposed development is located; if it has considered those other aims and objectives of LEP 2000 that are relevant to the development; and if it is satisfied that the development would not have "an unacceptable cumulative impact on the community, locality or catchment that will be affected by its being carried out or on the area of Tweed as a whole". 8The Land was first acquired by Dr Harry Segal (a director and controlling shareholder of the plaintiff) and his wife in 1969. It was transferred to the plaintiff in 1974. Dr Segal's son, Stephen Segal, has been a director of the plaintiff since 1977 and assumed the management of the Land from the late 1990s. 9The Land was cleared of large vegetation in the 1970s and subsequently used for grazing cattle until the 1990s and thereafter for agistment of horses. During the period from the 1970s through to the late 1990s Dr Segal walked over the Land from time to time to check on the cattle and/or the fences. At other times he would observe the Land from the top of the hill south of Quigan Street from which he could see the whole of the Land. Dr Segal was never restricted from walking over the Land by any flooding nor did he observe it to be overly moist, except for one area below the Kingscliff hill on the south eastern edge of the Land near Quigan Street. 10The plaintiff read a number of affidavits of witnesses who had made observations of the Land during the period from 1970 to the late 1990s. That evidence was unchallenged. Between the 1970s and the early 1990s Peter Gray managed cattle on the Land and accessed it generally on horseback but also by foot, tractor and utility. His evidence was that he never experienced vehicles being bogged nor did he observe any inundation of water except after certain flooding events. After a flooding event the water level always returned to normal, meaning that the drains on the Land were between approximately half and three quarters full, depending on the tide. Mr Gray observed that the vegetation was the same as the vegetation on surrounding land. It was mostly low-lying scrubby vegetation such as bottlebrush and small trees. 11Between 1971 and the 1990s Verlie Moodie walked on the Land regularly to collect cow manure for her garden and/or for leisure and exercise. Mrs Moodie's evidence was that the Land was a large open space with a few scattered trees. After rainfall some of the Land was damp and moist but it was never sludgy or drenched with water. Mrs Moodie could not recall any occasion on which the Land was ponded or submerged with water. 12In 1978 Gil May travelled on an "east/west road to the main Chinderah north/south drain". He then "went into a small boat, a duck punt", up a drain "which went east/west". He went up that drain "about third of a kilometre". Mr May referred to this drain in his evidence as the "northern east/west drain". He described it as a natural watercourse that had been dug to make it deeper. It was about 2 to 3 metres wide when full of water and about 1.5 to 2 metres deep in a king tide. The banks of the drain were covered in grass, sedge and native plants. It was lined with mangroves near the intersection with the Chinderah Drain. The last time Mr May went fishing in the northern east/west drain was in 1991 when it was in much the same condition as in 1978. The water in the drain was at least waist deep. There was no cross-examination of Mr May and it is probable that the northern east/west drain that he described in his evidence is the Northern Drain. 13Mr May observed acacias on the north eastern side of Lots 11, 12 and 13 of the Land. There was a wet patch in Lot 12 north of where Turnock Street was later constructed in which Mr May observed that there was a two to three metre section with a sandy bottom where the water would go up to "just below your knees". Mr May observed that it was a natural depression and was grazed by cattle with clusters of small trees and patches of sedge. 14Catherine Boyd who has lived in Pearl Street, Kingscliff since the 1950s gave evidence of observing cattle grazing on the Land from the 1970s to the 1990s. Mrs Boyd walked over the Land during that period on a weekly basis for "leisure". Mrs Boyd did not observe any parts of the Land being "wet, flooded or submerged". She observed wallabies and kangaroos and "lots of" small trees. Mrs Boyd also gave evidence that about once a year, the local fire brigade would practice their fire management skills on the Land. 15Reginald Goodwin worked on the Land in 1990 and 1991 spraying herbicide on groundshell bush in Lot 10. Mr Goodwin brought a tractor and spraying equipment (that together weighed approximately 6 tonne) in the back of an 11 tonne tip truck which he drove through the Land. He then unloaded the tractor, completed the spraying and loaded the tractor back onto the truck and drove back through the Land. Mr Goodwin said that the ground was "rock solid" and he never had any trouble with the truck or the tractor becoming bogged. At this time he observed approximately 30 horses on the Land. 16After the construction of Turnock Street in 1997 Mr Goodwin returned to the Land and began "slashing" the Land both north and south of Turnock Street. He slashed the Land at least once a year. Since the construction of Turnock Street the tractor "got bogged continuously". Mr Goodwin had to use two tractors, "one tractor to pull the other tractor out", because the Land is "so soggy now". Mr Goodwin noticed that after the construction of Turnock Street the vegetation in Lots 11, 12 and 13 of the Land had become thicker with "more reedy types of grass". Early drainage problems 17On 31 July 1974 Dr Segal wrote to the defendant advising that he felt that the defendant must accept responsibility for the large drains which "open directly" onto the Land that were "causing severe localised drainage problems". 18On 4 August 1974 Les Noble of Les Noble Pty Limited, Auctioneers, Real Estate Agents and Valuers, owner of the adjoining property to the west of the Land, wrote to Dr Segal in the following terms: The so-called swamp on your property, which is at the back of our property, is only brought about by the fact that the now existing drains in the property have never been cleaned out for the past twenty years and if you feel like doing that, also in the new part, it would improve it immensely. 19On 27 August 1974 the defendant wrote to Dr Segal in response to his letter of 31 July 1974 and advised that the defendant did not "at present" have sufficient funds to consider drainage through the Land. That letter included the following: Whilst it is accepted that drainage from Kingscliff streets discharges onto the property, the area, of course, is a natural water course or collection area. The matter may be further considered when development proposals in the areas are considered. 20On 5 November 1974 Mr Noble wrote to Dr Segal advising him of his recent discussions with some drainage contractors and suggested that Dr Segal spend up to $600 on drainage. On 3 December 1974 Mr Noble advised Dr Segal that he had engaged the drainage contractor and that when the work was completed "you will be looking at a different property". Dr Segal gave affidavit evidence that he did not understand why it was that Mr Noble used the expression "swamp" in his correspondence to describe the Land. Proposal to develop the Land - 1978 21In 1978 the plaintiff submitted a proposal to develop the Land. The defendant advised the plaintiff that detailed flood and environmental studies would have to be completed. The plaintiff offered to contribute to the cost of the flood studies, however in December 1978 the defendant advised the plaintiff that funds had been allocated for such studies and it would not be necessary for the plaintiff to contribute to the cost of them. Growth Plan 22In 1980 the plaintiff instructed Burchill & Partners Pty Limited, Consulting Engineers and Planners, to provide a report in respect of a proposed "Growth Plan" for Kingscliff. That proposal was to develop not only the Land but also Mr Noble's property. The report noted that the Land was subject to "inundation in the 1:100 flood in the Tweed River System, to a depth of average 2.0 metres" and that up to that time it had been omitted from planning for new development for that reason. The report included the following: If a practical and economically viable method can be found of overcoming the flood factor, by filling and draining, then the land would be available to serve the desired use as the preferred future development zone for Kingscliff. 23The report also noted that the combined area of the properties was approximately 75 hectares, about one half the area of the then existing township. It also noted the demographic phenomenon of increasing migration from major cities to provincial coastal towns with the most desirable climates and environments and it was suggested that Kingscliff would attract an overspill of the growth element in the Gold Coast. The report also noted that there was too little existing stock and it was essential to stimulate new development rather urgently. The report made reference to the Draft Tweed Coast Plan and included the following: The Draft Tweed Coast Plan showed that there were no flora and fauna species on our clients' lands which require or warrant protection. 24The Burchill & Partners report was submitted to the defendant. The defendant advised the plaintiff that it had considered the proposal for the Growth Plan at its meeting on 17 December 1980 and had resolved to prepare a draft Local Environmental Plan. It also advised that a detailed report was required on the effect of excavating and filling the flood plain and that an environmental assessment needed to be made of the impact of the proposed artificial lakes that formed part of the Growth Plan. 25On 12 March 1981 the defendant advised the plaintiff that it was necessary for the Growth Plan to demonstrate how flooding would be overcome "including the determination of pumping or other facilities necessary to remove local stormwater from within the protected area" and to identify the drainage paths of existing Kingscliff urban development and the effect of the proposed works on such existing usage. It is not clear to what the expression "protected area" referred but it was not suggested that it has any significance to the issues in this litigation. The plaintiff met with the defendant during 1981 and was advised more than once that "not a grain of sand can be moved until drainage studies are done and these drainage studies permit filling to occur". 26Between the early 1980s and the early 1990s the Land was not developed nor was the Growth Plan adopted. However it is apparent that the defendant worked on developing a draft Development Control Plan. Cessation of cattle grazing 27Some time in the 1990s the plaintiff discontinued grazing cattle on the Land because of reports of the presence of a pack of dogs that were killing newborn calves. There were also reports of vandalism on the Land. Subsequently the plaintiff made a decision to permit the agistment of horses on the Land. Development Consent to NPE - December 1992 28On 9 December 1992 a Development Consent was issued to Baclon Pty Ltd (Baclon) for the development of Mr Noble's land to the west of the Land into the NPE. The proposed development included the construction of a lake to the west of NPE and west of Elrond Drive. The Eastern Drain (on the boundary between the NPE and the Land) was to be filled in and a batter wall was to be created onto the western boundary of the Land. 29The conditions to the Development Consent included the following: 36. The proposed subdivision is to be filled to RL 3.5m AHD in accordance with the approved plans. ... 40. The Engineer Drainage Design plans shall address the 5 year discharge from the ultimate fully developed upstream contributing catchment and any foreshadowed development in upstream catchment which will contribute to the runoff through this development. ... 43. A drainage overflow path to accommodate Q 100 flows shall be retained along the northern boundary of the land until such time as the drainage strategy is resolved. Details to be shown on the engineering plans. 30The drainage overflow path along the northern boundary referred to in condition 43 to the Development Consent was necessary because one of the streets in the NPE, Lorien Way, was to be extended across the Northern Drain. Murray vegetation mapping -1992 31In June 1992 Andrew Murray, a botanist and vegetation ecologist, surveyed the Land as part of a comprehensive fine scale vegetation mapping project for coastal lands in the Tweed Shire. Mr Murray observed "shallow standing water" over a large part of the Land at this time. DCP 9 - 1993 32The Tweed Development Control Plan No 9 (DCP 9) (which applies to the Land) came into force on 7 October 1993. Its purpose is, inter alia , to provide detailed guidance to developers within the area and to indicate the defendant's policies with respect to development in the area. Matters pertinent to this litigation in DCP 9 include: (1) A water quality report and water quality monitoring program is required for all applications for filling and subdivision; (2) Filling of land for residential development is to be 3.4m AHD; and (3) Applications for filling are to include information demonstrating that fill will have no adverse effects on flooding or drainage characteristics of nearby land. DCP 9 also includes a section entitled "E. Drainage & Water Quality Management", the objectives of which include the prevention of "flooding and stormwater damage to the built and natural environment". It is noted in the DCP that subdivision applications will be refused unless it is "proved that the land is capable of development without adverse effects on flooding or drainage elsewhere". 1994 complaints 33Baclon's consulting engineers for the NPE development were Martin Findlater & Associates Pty Ltd. On 15 March 1994 Mr Henley of the defendant met Mr Findlater to inspect the work at NPE. In a note made of that meeting on 17 March 1994 Mr Henley wrote: I am not very happy with the connection from the end of new works to the old drain. I have agreed with Martin Findlater outflow improvements may be able to await the moving of machinery on site for next stage. Either the outlet drain is to be widened or the overland flow path is to be cleared and levelled. This could be considered as part of maintenance but I advised Martin that if we have any problems I will require that he immediately complete improvements to the outflow channel. 34On 21 April 1994 the consulting engineer for the Bowls Club, Ian Hill of Ian Hill & Associates Pty Limited, wrote to the defendant advising that he acted for both the Bowls Club and the Nursing Association and that he had recently inspected the rear of properties north of NPE. The letter included the following: The temporary diversion drain, that was constructed around the subdivision at the time of the lake construction contract, has been filled in as has also the union drain that followed the east-west boundary within the Noble Park property. A recent inspection revealed that water is ponding along this latter boundary line, and little cognisance appears to have been taken of the upstream catchment of Pearl Street, Kingscliff Street, the land between these streets and the subdivision. 35Mr Hill advised that he had spoken with Mr Findlater and requested the engineering drawings so that he could make an assessment of the position. On 27 April 1994 the defendant wrote to Mr Hill and requested that he liaise with Mr Findlater in relation to the resolution of any future problems. 36On 17 June 1994 Mr Hill wrote again to the defendant advising that he had completed the investigation of the drainage at the rear of the properties and reported as follows: We do not believe that it is this firm's responsibility to resolve the problem as the works associated with the subdivision, which clearly prejudice our Client, were approved and supervised by Council. You are aware that Council's drainage, from Kingscliff and Pearl Streets, discharge onto the Club property and this was extended at the Club's cost, with no assistance from Council, across the property to the open drain that ran along the northern boundary of Baclon Pty Ltd property to the Kingscliff union drain. This drain is shown as lateral Drain B in the draft report on Kingscliff Drainage Strategy prepared by WBM Oceanics Pty Ltd and, with Council's permission, has been filled in by Baclon Pty Ltd. We would appreciate advice as to what remedial action will be implemented before the start of the next wet season. Warren Report - 1994 37In mid 1994 the plaintiff had applied to the defendant for approval for clearing operations to be carried out on the Land in areas that were covered by a Tree Preservation Order. In June 1994 James Warren, a biological and environmental consultant, provided a report to the plaintiff entitled " Flora and Fauna (Section 4A) Assessment ". An assessment under s 4A of the Environmental Planning and Assessment Act 1979 (NSW) (the EPA Act) determines whether a development will have a significant impact on endangered fauna or their habitat. Mr Warren noted that the Land was still being utilised for horse and/or cattle grazing purposes and he identified a Paperbark forest and a "clump of Wallum bottlebrush" in the southern portion of the Land. Mr Warren referred to a computer check on the local records that had been carried out by the National Parks & Wildlife Service (NPWS) that had identified significant threatened species recorded in the locality. He observed that a number of endangered species "might also be expected to occur in the locality". Although there was mention of the Wallum tree frog ( Litoria olongburensis ), there was no mention of the Wallum Froglet. That survey included the following: The sites, due to their highly disturbed nature are likely to contain high numbers of Cane toads. These amphibians displace native frogs and are even thought to feed on small native frogs. It is possible, though unlikely, that the site contains Wallum frogs. If the frogs occur it is most likely that they would occur in the perennially wet areas associated with the Paperbark forests. 38The Wallum Froglet is a "vulnerable species" under the Threatened Species Conservation Act 1995. It first attained a protected status in 1992 when it was listed as a "Vulnerable and Rare Species" in Schedule 12 of the National Parks and Wildlife Act 1974. If a proposed development would significantly affect a threatened species, the EPA Act requires a species impact statement to be prepared before the application may be considered. The impact of the development on the threatened species must be assessed when determining the development application. It is an offence under section 118A of the National Parks and Wildlife Act for a person to harm any "threatened species" (which includes a "vulnerable species"). WBM Oceanic - 1994 39On 10 August 1994 WBM Oceanic Australia (WBM), commissioned by the defendant, produced the "Kingscliff Drainage Strategy Plan" (Ex O) (the WBM Report). The WBM Report documented the development of the drainage strategy for major flooding of the Kingscliff area. It recorded that the need for the Plan had arisen "due to the degree of urbanisation and filling planned for the catchment". Figure 1.1 of the Plan entitled "Kingscliff Drainage Catchment" showed a "Catchment Boundary" that is also depicted in Schedule A to this judgment by the yellow boundary line. WBM reported that the development of a "stormwater drainage strategy plan for the Kingscliff drain" in Figure 1.1 was in accordance with the Development Control Plan No. 9 (DCP 9) for the West Kingscliff area. Ian Hill & Associates Report 40On 14 September 1994 Mr Hill provided the defendant with a copy of a report prepared by his firm entitled "Drainage of Kingscliff Street Site". That report included the following: 3.0 DRAINAGE PATTERNS - 1993 During 1993, the subdivision known as Noble Park Estate was constructed; part of construction involved filling of the site by some 2 m, during which the open drain was filled in and the filling extended across into the Club's land without any further discussions with the Club and without the Club's approval. At a brief inspection of the Bowls Club site, in February 1994, Mr Hill of this office noted that the drainage path was blocked by filling, including the filling for a roadway from the adjacent Middle Harbour development. Mr Hill rang the Tweed Council and spoke to Mr John Samuels, voicing concern that no provision had been made for drainage of the land to the north and east of the Baclon development, and was advised that the blockage was only temporary. An inspection in March 1994, showed that the subdivision filling had been completed; no allowance was made under the roadway for escape of stormwater, and a 1200mm dia concrete pipe had been provided at the corner of the Bowls Club property, which was supposed to carry the stormwater to the west and north of the subdivision. 41The report concluded that the 1200mm height was "under capacity" for the Q5 event (being a storm event of a magnitude that occurs on average once every five years) and no provision had been made for the Q100 event; that the design ignored the defendant's drainage strategy for Kingscliff; that the installed drainage system had not been constructed as designed, further reducing the capacity of the system to cater for stormwater runoff; and that as a result, the properties of the Bowls Club and Nursing Association would be subject to a greater degree of flooding than would have occurred prior to the construction of NPE. 42After the defendant received the report from Mr Hill and a further letter from the lawyers for the Bowls Club it wrote to Martin Findlater on 31 October 1994 expressing its concerns regarding the Q5 hydraulic capacity of the 1200 diameter pipe and the resulting potential for flooding of adjoining property owned by the Kingscliff Bowls Club. The defendant referred to the WBM Report that indicated a catchment larger than that adopted by Mr Findlater in his design and suggested that this "discrepancy should be clarified". 43On 2 February 1995 the defendant wrote to Mr Hill advising him that it had recently held discussions with Mr Findlater "in an attempt to formulate a solution to the problem". The defendant advised that as a result of the meeting it was agreed that Mr Findlater would "submit a number of options" for the defendant's consideration, which it was still awaiting. Retention Basin Proposal - March 1995 44At this stage Baclon was seeking approval for the fourth stage of the NPE development from the defendant. On 1 March 1995 the defendant advised Mr Findlater that no further approvals or consents would be given "until the drainage solution and its funding is agreed upon". That letter included the following: Given that your original stormwater design did not adequately cater for the Q100 storm event and that Council has no funds for such analysis at this stage, it is intended that Council initiate the analysis at the consultants cost. 45On 2 March 1995 the defendant wrote to Mr Findlater in terms that included the following: The Panel also resolved that any fresh development application will not be determined until the upstream drainage issues are resolved because the approved Part 12 application causes inundation of properties in excess of permissible levels. 46On 9 March 1995 Mr Findlater wrote to the defendant referring to verbal advice from the defendant on 8 March 1995 that permission to complete the drainage work through NPE Stage Four would be approved upon the condition that Baclon Pty Ltd requested the defendant to amend DCP 9 and the Section 94 Plan for West Kingscliff. That letter included the following: In accordance with your instructions we suggest the DCP 9 be amended as follows: A nominal area of 1 Ha for future multi-purpose open space/flood retention/wet land filter should be reserved east of Noble Park estate. The value of the land shall be incorporated into the drainage and S94 Plan and reimbursed from that plan. Any open space component shall be credited against the passive or active open space requirements for development in the area as appropriate to the use of the land. Our client is offering this suggestion as an alternative to the proposed 20m wide open channel adjacent to the northern boundary of Noble Park estate. That proposal formed part of WBM Oceanics Kingscliff Drainage Strategy Plan report dated August 1994. Calculations demonstrating the feasibility of the alternative have been supplied to Mr Henley. 47Although Mr Findlater did not expressly refer to it, the proposal to put aside an area of one hectare east of NPE was really a suggestion that the Land be used as a retention basin. 48On 10 March 1995 Mr Findlater wrote to the defendant in answer to its letter of 1 March 1995 refuting the assertion that the original stormwater drainage design did not adequately cater for the Q100 storm event. That letter included the following: The drainage for the estate was designed and constructed in accordance with Council's Development Consent for the estate. This is confirmed by the approval of the layout plan, the engineering drawings and the release of the linen plan of subdivision. Council has now developed a drainage strategy for Kingscliff which is reported by Council's consultant WBM Oceanics. That drainage strategy (dated August 1994) incorporates specific water level controls which were not required under the consent and are a consequence of the study. To achieve those controls the strategy provides for an open drain at least 20m wide adjacent to our clients northern boundary. Our client is concerned about the practicality of such a drainage ditch. He is also concerned that piped alternatives are expensive and would unnecessarily increase Section 94 Contributions. We have provided objective alternatives to the drainage strategy and identified corrections that should be made to the model. This work has been carried out at no cost to Council. We are disappointed that Council should consider our comments as an implication that Noble Park drainage is deficient. Our client has been required to supply work in kind to the value of $586,000. This is for a S94 liability for approved development of less than $200,000. Our client does not intend to provide additional funding other than what is required as a result of reasonable variations to the S94 Plan. Such variations can be adjusted in credits due. We also confirm that we shall not be contributing to any additional analysis by Council to determine alternatives to their drainage study. We understand from discussions with Mr J. Henley that this will not be required. 49On 13 March 1995 the Manager Subdivisions of the defendant wrote to the Director Development Services of the defendant in terms that included the following: As you will recall, following completion of the early stages of Noble Park Estate it became apparent that a drainage problem existed in relation to the existing developed land upstream of the estate. Following rainfall, complaints were received from residents; Ian Hill on behalf of the Blue Nursing Service and the Bowls Club in relation to inundation of their properties. Investigations and discussions between Council officers and Martin Findlater, (consultant for Noble Park) have been continuing for some months, however as the matter had not been resolved, no further consents/releases have been issued for West Kingscliff for about 3 months. Following further discussions on 7 March 1993 between John Henley, Col Dutton and Martin Findlater, a possible solution was agreed to in principle. That concept involves:

At a glance

Court

Decision date

Before

Source

Judgment (5 paragraphs)

Parties

Legislation Cited (5)

Cases Cited (36)

Cited By (9)