Guilfoyle Developments Pty Ltd v Woollahra Council

1COMMISSIONER : This is an appeal pursuant to s 96(6) of the Environmental Planning & Assessment Act 1979 (the Act) against the deemed refusal by Woollahra Council (the council) to grant consent to a s 96 Development Application Number 324/2008/6. 2The development application seeks to modify a part of Condition 13 of DA 324/2008/1 approved on November 17 2008 as amended by s96 DA 324/2008/4 approved on December 2 2009 that relates to drainage. 3The applicant is seeking to delete subclauses 13(a), 13(b) and 13(c) of Condition 13 that in essence require the construction of a pipeline to remove surface stormwater from an approved residential flat building. The applicant seeks to discharge the stormwater to council's kerb and gutter. In doing this, the applicant proposes to rebuild a section of kerb and gutter beyond the immediate boundary of the site. The site and locality 4The site comprises 2 allotments being 4-10 and12 Guilfoyle Avenue Double Bay respectively. An approved development for a 6 unit residential flat building is currently under construction. 5The site is on the southern side of Guilfoyle Avenue close to the intersection with Bay Street and in close proximity to the Double Bay commercial centre. Opposite the site is Guilfoyle Park, which is located in the centre of Guilfoyle Avenue. 6To the east is a five-storey commercial/retail building and to the immediate west is a single storey dwelling house. Further to the west are other residential flat buildings. On the northern side of Guilfoyle Avenue are two and three storey residential flat buildings. 7On the southern side of Guilfoyle Avenue are a number of mature and well-established Platanus x hybrida (Plane Tree) street trees planted in the grass nature strip between the footpath and the kerb. 8The site and the immediate vicinity are almost flat with a gradual fall to the west. A comment from council's Heritage Officer in a report to council's Development Control Committee dated 20 October 2008 notes that Guilfoyle Avenue was originally known as Swamp Street. Numerous council documents state that the site is in a critical area in the flood plain. The condition in contention and relevant background 9The condition in contention is part of condition C13 Road and Public Domain Works - Council approval required . This condition covers works on the road and footpath as well as drainage works. 10The original DA for the demolition of two existing residential flat buildings and the erection of one new residential flat building was approved on 17 November 2008. The referral response from council's technical services on 13 November 2008 notes that In general there are no objections to concept stormwater plan subject to...the stormwater discharge is to be connected directly to Council's stormwater pipe located connecting the drainage from the proposed works to the existing stormwater system located in Guilfoyle Rd with a minimum of 375 dia RCP for at least 30m. A condition of consent, Condition C 13, reflecting that requirement was drafted and formed part of the final conditions of consent for the development. [In the Court proceedings this pit is referred to as Pit 1 and is located downstream of the boundary between 20/ 24 Guilfoyle Avenue.] 11In March 2009 a s 96 application (DA 324/2008/2) was approved to modify aspects of the development however this did not include the stormwater drainage works. 12On 12 November 2009 the applicant lodged another s 96 application (DA 324/2008/4) to modify and remove part of Condition C 13 on the basis of the distance to the nearest gully pit of 54 m and the technical difficulty of achieving an adequate fall to that pit. The applicant cites cl 6.4 of council's Draft Stormwater Drainage Management Development Control Plan (SDM DCP) and the possibility of an exemption from discharging into council's below ground system if the required extension exceeds 30m. In the alternative, the applicant suggests discharge to the kerb and gutter. 13On 2 December 2009 council approved a modification to Condition C 13 with an allowance of reduced coverage of the pipe and an alternative location (option 2) for a connection to the existing drainage system to the north of the site, across Guilfoyle Park to the north-western corner of Guilfoyle Avenue and Bay Street [referred to as Pit 3]. 14On 26 July 2010 the applicant lodged another s 96-development application (DA 324/2008/6), the subject of this appeal, to modify or remove part of Condition C13. 15The relevant part of the condition in contention is as follows: C13.... Drainage a) Construction of a standard gully pit in the kerb fronting the subject site in accordance with Council's Standard "Grated Gully Pit with extended Kerb Inlet" drawing DRI. b) Construction of a new 375mm RCP in-ground drainage pipeline to be connected to Council's existing drainage system via the following options: