Grant v Woollahra Council

Land and Environment Court (NSW)|2011-02-23|Before: Mr P

Solicitor Mr P Rigg (Respondent) Solicitors Norton Rose Australia (Applicant)

Pikes Lawyers (Respondent) File Number(s): 10951 of 2010 10953 of 2010 10080 of 2011

Ex tempore Judgment 1The applicant Bruce Grant has commenced three proceedings against Woollahra Council in respect of his property at the 120 Hopetoun Avenue, Vaucluse (the site). 2Matter number 10/10951 concerns an appeal against Council's deemed refusal of building certificate application lodged on 13 July 2010. The appeal is pursuant to s 149F of the Environmental Planning and Assessment Act 1979 . 3Matter number 10/10953 concerns an appeal against Council's deemed refusal to sign the applicant's positive covenant pursuant to a request made on 5 March 2010 in satisfaction of condition 22 of development consent 314/2006, the original consent. 4Matter number 11/10080 concerns an appeal against Council's deemed refusal of the applicant's development application DA7052020/1 lodged with the Council on 22 December 2010. It also includes an application under s 138 of the Roads Act 1993 for certain drainage works within Hopetoun Avenue. 5Although the proceedings are linked, the hearings were dealt with in accord with the party's agreement. The building certificate and the covenant appeals were heard together and the development appeal heard separately but consecutively. It was also decided that the judgment of the development appeal should be handed down before the determination of the building certificate and covenant appeals. Despite that, however, at the conclusion of the hearing of the development appeal the parties decided to dispose of the three proceedings by consent orders. A draft of the proposed consent orders was sent to the Court by email after the conclusion of the evidence on Friday 18 March 2011. The draft consent orders propose that the Court approve the development application and - before the completion of the development works - agree to a timetable for the execution of the covenant and the building certificate and dismissal of the proceedings. 6The matters were listed today to allow me to hear submissions in respect of the draft consent orders. Having considered those submissions I have decided not to make the draft consent orders. In my opinion it is premature to order the execution of the covenant or the issue of a building certificate before the development works have been completed to council's satisfaction.

Matter no 11/10080 7As I said, the development appeal is against Council's deemed refusal of the applicant's development application DA705/2010/1 lodged with the council on 22 December 2010. The appeal also includes an application under s138 of the Roads Act 1993 for approval to construct drainage works in Hopetoun Avenue. 8I rely on the statement of facts and contentions filed by the Council on 17 February 2011. I do not need to repeat the detail save to set the background to enable an understanding of the evidence.

The site 9The site is located on the southwestern side of Hopetoun Ave, Vaucluse and is located two properties south of the intersection with The Crescent, Vaucluse. The site is rectangular in shape with a total site area of 695.5 sq m. It has a front and rear boundary measuring 15.24 m and northern and southern boundaries measuring 45.12 m in length.

Locality 10A part two/three storey dwelling house with associated landscaping and swimming pool, which has recently been the subject of alterations and additions, occupies the site. An elevated lawn and swimming pool are located to the rear of the site. 11The locality is characterised by one, two and three storey residential development. Several owners of properties in Hopetoun Ave (including 118,122 and 128 Hopetoun Ave) have raised concern about the recent works causing water / drainage impacts to their properties. They assert the works do not accord with the approved plans and conditions of consent and therefore the council should not issue a building certificate. Some of those neighbours addressed the Court. All written submissions received in respect of the notified applications were tendered in Council's bundle of documents and considered by the Court.

Proposal 12The development is for the "Discharge of existing pump/sump stormwater system runoff to kerb in Hopetoun Avenue: installation of stilling pit". It is detailed in the drawings prepared by M Zimmerman &Associates Pty Ltd (exhibit GG) and the Stormwater Drainage works plans prepared by Worley Parsons dated 11 March 2011 (exhibit H). 13If approved, clean roof water will be pumped from the site to Hopetoun Ave instead of pumping it to the existing absorption /infiltration system at the front of the site in accordance with DA consent no 314/2006/1 dated 19 December 2006. 14Both parties submit that an approval of this appeal will have the effect of modifying the conditions of the earlier development consent DA 314/2066/1. The Court has the power to make a modification to earlier development consent by the imposition of conditions of consent under s80A (1)(b) of the Act. However, in acknowledging that opportunity under s80A (1)(b) of the Act I accept council's caution to avoid unnecessary amendment of an earlier consent before the completion of the works approved by this latter consent. The certainty of this latter consent being acted upon is even more precarious in circumstances where the site is in the process of being sold. 15The parties submit that the contentions identified in the statement of facts and contentions are resolved by the evidence of council's consulting engineer, Mr Dewar (exhibits 11 and 44), and the engineering drawings (exhibit GG and exhibit HH) and the draft conditions (exhibit 55). With respect to the objectors' concerns, (contention 3 of the statement of facts and contentions) the Council invites the Court to accept the expert evidence of Mr Dewar, over that of the lay objectors.

Draft conditions 16I accept the parties' joint position that the contentions are resolved on the above basis and note that the applicant accepts the council's conditions except for condition 12G. The applicant accepts condition 14 subject to amendment to delete the final paragraph. 17Despite initially opposing the imposition of the noise condition in condition 23A (to control noise from the stormwater drainage pumps), after amendment to require measurement of noise from the boundary fence, it was accepted. Its imposition is important because it addresses the concern raised by Mr Hall in his oral evidence to the Court. Condition 12G 18I will now deal with condition 12G. This condition requires the modification of the existing rainwater tank to ensure that a minimum of 25 per cent of the capacity is available for detention storage. It is included because the Council's expert, Mr Dewar in exhibit 44 raised some doubt about the storage capacity of the detention storage in the existing rainwater tank on site. He does not accept Mr Shaw's, the applicant's expert, water balance assessment, as described in point 8 in exhibit 11 which confirms the initial assessment of Mr Shaw in his statement of evidence exhibit BB that the rainwater tank as constructed has an effective detention component that exceeds his original assessment of 25 per cent. 19Condition 12G adopts Mr Dewar's solution to the identified concern. It requires the placement of a 40 mm diameter pipe approximate three-quarters up the tank, leading to the sump thus allowing inflows that exceed this level to outflow to the sump and be pumped to the street and into the proposed 375 mm diameter pipe with an estimated cost of 500 inclusive if GST. 20The applicant says this is unnecessary based on Mr Shaw's assessment and that it impedes the applicant's opportunity to store rainwater for watering and recycling uses on site. 21Having considered that evidence - and mindful of the marginal expense involved, I accept Mr Dewar's expert opinion in the circumstances of the case. Therefore, condition 12G should be imposed under the Act.

Condition 14 22With respect to the amendment of condition 14 to delete the final paragraph as proposed by the Council and to replace it with the applicant's words in the note at condition 14, I make the following comments. 23As noted above the Court has the power to modify conditions in the existing development consent by the imposition of conditions in this appeal to facilitate this development. However, I also accept that in doing so in the particular circumstances of this case it is necessary to avoid premature amendment. The fact is that until the works the subject of this development application are completed, if indeed commenced, the site needs to control its stormwater. Condition 21 of the original consent is modified condition 14 of this appeal. Condition 21 of the original consent must be able to operate independent of this consent until such time as the completed works under this later consent replaces it. 24The condition 14 as drafted by the Council preserves the integrity of the original consent until such time as the further drainage works approved by this development consent are completed. Therefore, I accept Council's condition 14 as proposed by the Council. 25I note the draft conditions include the requirement for a positive covenant, condition 15, and the amendment of condition 22 of the development consent 314/2006 and condition 16 deals with the ongoing maintenance of the onsite detention system and pumps. These conditions will ensure that the owners of the site are aware of a requirement to maintain their stormwater systems.

Objector evidence 26In the development application appeal the Court heard oral evidence from Mr Bourke and Mr Hall. Both objectors to this proposal spoke to their written submissions tendered to the Court. In fact the Court has considered all of the submissions in respect to the proposal. Both residents expressed concern about the reliability of the pumps. In an attempt to address their concerns the Council -reliant on the expert opinion of Mr Dewar and Mr Shaw - has recommended condition 12B. It provides: "The dual alternating pumps to be installed at pump PP2 in the rear yard, being attached to an uninterruptible power supply, for example diesel generator or the like." 27I am satisfied, based on the engineering evidence, that the proposed condition will address the resident's concern about reliability.

Conclusion 28Based on the evidence, as required by clause 25 (2) of Woollahra Local Environmental Plan 1995, I am satisfied that adequate provision has been made for the disposal of stormwater by this development, subject to the conditions in exhibit 55. 29In coming to that conclusion I rely on the evidence of Mr Shaw and Mr Dewar that the solution to manage stormwater on this site is to discharge the existing pump/sump stormwater system runoff from 120 Hopetoun Avenue to kerb in Hopetoun Avenue as detailed in exhibits 11, GG and HH. 30The engineering evidence supports a finding that this solution will also deliver a public benefit because works in the road will also collect stormwater from areas outside the subject land. This was Mr Dewar's evidence and I accept it because he has considerable knowledge about the drainage in The Crescent and local area having been engaged by the council in recent years to investigate the issue. 31In granting consent to allow the pumping of the clean roof water from the site to Hopetoun Avenue, instead of pumping it to an existing absorption infiltration system at the front of the site, there is a need to modify development consent DA 314/2006/1 dated 19 December 2006. Therefore I modify as required the conditions of the earlier development consent under s80A (1)(b) relating to stormwater management, conditions 18 to 22 by imposition of the Council's draft conditions in exhibit 55 under s 80A (1) (a) of the Act: Gordon & Valich Pty Ltd v City of Sydney Council [2007] NSWLEC 780. 32In order for the development to be carried out it is also necessary to carry out development on Hopetoun Road and based on the evidence I also grant consent to works under s138 of the Roads Act 1993. 33Based on the evidence and after assessment under s 79C of the Act, I make the following orders: (1)The appeal is upheld. (2)Development consent is granted to DA705/2020 subject to the conditions in Anexure 'A'. (3)The exhibits are returned on publication of this judgment. Matters number 10/10951 and 10/10953 34I will now deal with matters 10/10951 and 10/10953, the building certificate appeal and the covenant appeal. I rely on the facts as outlined in the judgment in matter number 11/10080 at paragraphs [9] -[11]. 35The parties have proposed certain consent orders which provide for the issue of a building certificate and execution of a positive covenant by Council's after its satisfaction or the Court's satisfaction about the works the subject of the Court's consent in development appeal 11/10080. 36The timeframe for the completion of the development works under appeal 11/10080 is unknown although the draft orders contemplate a period of weeks. 37The Court's role is to determine and dispose of proceedings justly and efficiently. The making of the proposed consent orders in these appeals, (despite the urgency because of the pending sale of the land) is in my opinion at odds with the Court's role in bringing proceedings to finality. 38Based on the evidence, including the concerns raised by the objectors, and the fact that Mr Harrington, the private certifier, observed unexplained moisture, I am not satisfied that the development as constructed adequately disposes of stormwater from the development without the further works approved under the development appeal. That is Council's submission and the evidence supports that finding. 39Furthermore, I accept Council's submission that the solution to the stormwater disposal on this site requires further works in circumstances where it's unclear what is in fact has been built. The applicant's private certifier in retracting certain matters on the eve of the hearing in my view casts doubt on the integrity of his evidence to the Court. He gave evidence without reference to written records or notes of critical investigations. I am unclear why these were not produced to the Court as evidence despite my inquiry. The private certifier also admitted in oral evidence that he failed at the relevant time to examine the size of the pump installed under his supervision. In my opinion he did not appear to understand his role in the approval process. He sought advice from the Building Professionals Board of how to carry out his job as a certifier. 40Based on the evidence, I am not satisfied as required by cl 25(2) of the Woollahra Local Environmental Plan 1995 that adequate provision has been made for the disposal of stormwater by the constructed development on the site. Therefore, I cannot at this stage direct the Council to issue a building certificate or to execute a positive covenant. 41However, having said that, I accept that at completion of the works approved under the development appeal that Council will be in position to assess whether s 25(2) of the LEP has in fact been satisfied. It is premature for the Court to form any view on this issue. Therefore I make the following orders: (1)In Matter number 10/10591 the application is dismissed and costs are reserved. (2)In Matter number 10/10953 the application is dismissed and costs are reserved. Susan Dixon Commissioner of the Court ANNEXURE A DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 July 2011

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Judgment (11 paragraphs)

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Cases Cited (1)