Limousin No. 1 Estate Pty Ltd v Liverpool City Council

Limousin No. 1 Estate Pty Ltd v Liverpool City Council - [2022] NSWLEC 1173 - NSWLEC 2022 case summary — Zoe

[5]

Stormwater and flooding impacts

In opening submissions, Ms Pearman, counsel for the Respondent, identified that, but for some planning issues capable of resolution by conditions of consent should the Court be so minded, the principal issue in dispute relates to stormwater and its disposal.
The proposal is for development comprising onsite detention on a Lot identified as Lot 40, to be de-commissioned in a future stage at which time a permanent stormwater connection to Council's piped drainage in Edmondson Avenue to the west is to be provided.
The Applicant's Statement of Environmental Effects (Exhibit A, Tab 4, p34) states: "The proposal will connect into the road drainage network in future. The temporary OSD basin at the north west of the site will be decommissioned and a 3m wide easement through the adjoining property to the west will be utilised to carry stormwater to Edmondson Avenue, until such time as Council have delivered the regional stormwater management facility to the north east of the site and connection is available via Ninth Avenue. Both MUSIC and DRAINS Models are provided in support of the development to demonstrate the suitability of the proposed temporary and permanent stormwater management regime in line with Council's Engineering specifications."
The adjoining property to the west is owned by the Department of Education, or an agency known as School Infrastructure NSW, that is currently preparing a business case for redevelopment of the school site. It prefers, in the first instance, no easement for stormwater to traverse its site that would limit the development options yet to be prepared. In the alternative, any easement should be located along the southern boundary of the site where development is least likely to occur.
The Respondent considers the proposed stormwater system unsatisfactory for the site.
In short, the submitted catchment plan assumes a scenario that varies from that assumed in the Council's concept design for a network of regional basins. Whereas the Council's catchment flow assumes flows will be directed to certain regional basins, the Applicant's stormwater design proposes to re-direct flows to the west.
In so doing, the Respondent contends that the application fails to provide adequate information on the drainage system, proposed roads and staging of development and civil works to enable a proper assessment.
Of particular concern is the discharge of stormwater runoff to the adjoining school site to the west, that can be resolved by an easement acquired through the school site to connect to piped drainage in Edmondson Avenue beyond.
Absent an easement and piped drainage, the proposal fails to comply with the provisions of the Sydney Regional Environmental Plan No 20 - Hawkesbury-Nepean River (No 2 - 1997) (SREP 20) or, more particularly, conform to section 2.32 of the Liverpool Growth Centre Precincts Development Control Plan 2021 (LDCP) which deals with Water Cycle Management.
The section 2.3.2 of the LDCP relevantly provides: 2.3.2 Water cycle management "Objectives a. To ensure that the quality of stormwater discharged from urban areas into the environment complies with appropriate standards. b. To minimise potable water consumption and maximise re-use of stormwater within urban areas. c. To ensure that water cycle management infrastructure is cost effective and maintainable. d. To maintain and enhance the quality of natural water bodies. e. To provide an integrated streetscape approach in which landscape elements can improve stormwater quality runoff from urban areas to near pollutant free levels. Controls 1. Management of 'minor' flows and 'major' flows within subdivisions and development sites is to be in accordance with Council's Engineering Specification. 2. Stormwater within new subdivisions is to be managed primarily through a gravity network of pipes and overland flows generally following streets where flow volumes exceed the capacity of pipes in accordance with Council's Engineering Specification. … 4. The acquisition of drainage easements over downstream properties, or inclusion of drainage easements on subdivision plans, will be required where direct access to Council's drainage system or discharge of stormwater to a creek via the street network is not possible (i.e. street kerb and gutter, piped system or open channels and watercourses). However, the design of subdivisions is to generally comply with controls 1 and 2 above and management of stormwater through easements will only be permitted by Council in exceptional circumstances where no other practical solution is available. … 6. The developed 1%, 20% and 50% AEP peak flows are to be maintained at pre-development flows through the incorporation of stormwater detention and management devices. Where subdivision works occur prior to the completion of required trunk drainage works, temporary on site facilities need to be provided in order to limit drainage volume and velocity to that experienced prior to development."
The Council's civil engineering expert, Mr Charlie Carballo, initially identified three matters of concern in this regard: 1. Calculations provided by the Applicant have not demonstrated that the depth and velocity of stormwater will not change. If the depth and velocity of the flow were to change, it may result in erosion on adjoining properties. 2. The infiltration trench and level spreader is proposed to be constructed within private courtyards, making access for inspection and maintenance difficult. 3. The infiltration trench and level spreader is currently shown on the boundary, which is likely to contribute to saturated soils behind retaining walls, and on adjoining land.
The development application is supported by a Conceptual Stormwater Management Plan (Stormwater Plan) prepared by North-Western Surveys dated 2 December 2021 (Exhibit A, Tab 4) which states: "A level spreader is proposed at the boundary line to turn the surcharged flow into sheet flow and evenly discharge into neighbouring site through the existing gully line." (p 4).
In his oral evidence, Mr Caraballo acknowledges the Applicant's calculations show post development flows consistent with pre-development flows, partly due to the Applicant's calculations being based on a larger catchment than that originally assumed by Council.
Mr Caraballo is also satisfied that the extent of the interim and ultimate catchment area at Figure 3.1 of the Stormwater Plan is reasonable and identifies no issue with the analysis undertaken, but is concerned that there may be additional flows unaccounted for in the Applicant's DRAINS model.
The assumptions underlying the Applicant's DRAINS modelling are set out on pp 6-8 of the Stormwater Plan and assumptions underlying the MUSIC modelling are set out on pp 10-11.
The Stormwater Plan concludes, on p12, that: "A temporary detention basin on proposed Lot 14 & 15 has been designed to attenuate the peak post development flow rates to pre-development flow rates and provide stormwater treatment using a filter media with the following specifications: Treatment basin depth = 0.15m (WSUD extended detention level = 83.66m AHD) Treatment basin area = 125m2 Detention basin depth = 0.49m (OSD top water later = 84.15m AHD) Detention basin volume = 240m3 (max)"
The Respondent acknowledges the Applicant has undertaken DRAINS modelling, to determine peak flow, and MUSIC modelling, which verifies the water quality 'treatment train'.
However, the appropriate means by which the rate of flow from the OSD to the level spreader should be confirmed is, according to the Respondent, via TUFLOW modelling that has not been undertaken by the Applicant.
Only TUFLOW modelling is able to validate the depth and velocity of stormwater flow that, in turn, determines the likely rate of discharge onto the adjoining school site.
TUFLOW modelling has not been completed, according to the Applicant's expert, Mr Gerardis, because no contention particularised a requirement for TUFLOW modelling, and there has been no request by the Respondent for it to be completed until now.
Mr Caraballo also regards access to the infiltration trench and level spreader for inspection and maintenance to be limited given access is from private courtyards.
The Applicant has prepared a maintenance plan at Appendix E of the Stormwater Plan in which Mr Gerardis details the frequency and nature of maintenance necessary for the life of the stormwater system, until its decommissioning which can be expected as a condition of consent should Stage 2 be approved sometime in the future. In later evidence, Mr Gerardis clarified that the maintenance set out in Appendix E is in respect of the OSD basin only, and not the level spreader.

[6]

The development application is amended

At the commencement of the second day, Mr Perkins, solicitor for the Applicant, advised that the Applicant sought to amend the application by deleting the infiltration trench, and rely instead on a 3m wide 'rip rap' rock bed on the site's western boundary to act as a level spreader, but with a simplified maintenance regime from the infiltration trench previously proposed.
A short adjournment was granted, during which time the Applicant prepared a summary of the proposed amendments to assist the Court and the Respondent to fully understand the implications of the amendment, later marked Exhibit D, and for the Respondent to seek instructions.
Upon resumption, it was necessary to recall the engineering experts for further evidence. Mr Gerardis orally summarised the amendments contained on Dwg 705 and 401, and confirmed the deletion of Dwg 703 which contains details of the infiltration trench, otherwise referred to as the absorption trench, no longer relied on for dispersal.
The Court, exercising under s 39(2) of the Land and Environment Court Act 1979 (LEC Act) the function of the Respondent Council as the relevant consent authority under cl 55(1) of the Environmental Planning and Assessment Regulation 2000, agreed to the Applicant amending the development application by the substitution of Dwg 705 (Rev 04) and Dwg 401 (Rev 04), and deletion of Dwg 703.
The Court also directed the Applicant to lodge the amended application on the NSW planning portal within 7 days of the date of this order and notify the Respondent after it has been lodged.
Mr Caraballo acknowledged an improved maintenance outcome, but sustained his concerns as to the impacts of the dispersal of stormwater and the likely migration of subsoil moisture to the school site that would, in his view, remain 'wet and soggy underfoot' for prolonged periods following a significant rain event, and possibly result in 'scour' and erosion.
In response to a question from the Court, the experts agreed that migration of dispersed stormwater from the rip rap rock bed to the school site would not be mitigated by an impermeable barrier placed vertically at the western extent of the rip rap rock bed, nor, in response to a question from Mr Perkins, solicitor for the Applicant, would a deepening of the rip rap rock bed.
Instead, Mr Gerardis submits that the natural topography would, in any event, result in sodden conditions at the boundary of the subject site and the adjoining school site in any prolonged rain or storm event.
Dwgs 705 and 401 also depict an amendment to the retaining wall proposed to the western boundary of the subject site. In essence, where the retaining wall exceeds a height of 1.5m, it is proposed to provide a stepped, or tiered, retaining wall to reduce its bulk and scale when viewed from the adjoining school grounds.
To address the Respondent's concerns as to potential overlooking from the rear yards of the development into school property, the planning experts agree that a 1.8m high lapped and capped timber fence, located atop the upper most retaining wall, would resolve the issue.

[7]

Should an easement be imposed?

The parties have agreed draft without prejudice conditions of consent, marked Exhibit 5. Part 1, Condition 1 defers operation of any consent until evidence of an easement across the school site is provided, in a timeframe of not more than 24 months.
That said, the parties also agree that to defer commencement under those terms is to leave unresolved an essential part of the development consent, consistent with the findings of Pain J in Huntington & MacGillivray v Hurstville City Council (No 2) (2005) 139 LGERA 84; [2005] NSWLEC 155 ("Huntington") at [29].
In Huntington, Her Honour considered whether the Court had power to impose a deferred commencement condition requiring the Applicant to obtain owner's consent for use of a right of way.
In finding that a deferred commencement condition was an inappropriate way to deal with the right of way, Her Honour observed that "no reference is made to any measure to achieve legal access based on s 40 [of the Land and Environment Court Act 1979]."
Section 40 of the LEC Act provides for Additional powers of Court - provision of easements in the following terms: (1) This section applies if - (a) the Court has determined to grant or modify a development consent pursuant to proceedings on an appeal under the Environmental Planning and Assessment Act 1979, or (b) proceedings on an appeal under the Environmental Planning and Assessment Act 1979 with respect to the granting or modification of a development consent are pending before the Court (whether constituted by a Judge or by one or more Commissioners). (2) The appellant may make an application to the Court for an order imposing an easement over land. (3) The parties to an application under this section include the owner of the land to be burdened by the easement, and each other person having an estate or interest in the land, as evidenced by an instrument registered in the General Register of Deeds or the Register kept under the Real Property Act 1900. (4) In dealing with an application under this section, the Court may exercise the jurisdiction of the Supreme Court under section 88K of the Conveyancing Act 1919 and, in that event, section 88K of the Conveyancing Act 1919 applies to the Court's exercise of that jurisdiction in the same way as it applies to the exercise of that jurisdiction by the Supreme Court.
Section 88K of the Conveyancing Act 1919 provides: 88K Power of Court to create easements (1) The Court may make an order imposing an easement over land if the easement is reasonably necessary for the effective use or development of other land that will have the benefit of the easement. (2) Such an order may be made only if the Court is satisfied that - (a) use of the land having the benefit of the easement will not be inconsistent with the public interest, and (b) the owner of the land to be burdened by the easement and each other person having an estate or interest in that land that is evidenced by an instrument registered in the General Register of Deeds or the Register kept under the Real Property Act 1900 can be adequately compensated for any loss or other disadvantage that will arise from imposition of the easement, and (c) all reasonable attempts have been made by the applicant for the order to obtain the easement or an easement having the same effect but have been unsuccessful. (3) The Court is to specify in the order the nature and terms of the easement and such of the particulars referred to in section 88(1)(a)-(d) as are appropriate and is to identify its site by reference to a plan that is, or is capable of being, registered or recorded under Division 3 of Part 23. The terms may limit the times at which the easement applies. (4) The Court is to provide in the order for payment by the applicant to specified persons of such compensation as the Court considers appropriate, unless the Court determines that compensation is not payable because of the special circumstances of the case. (5) The costs of the proceedings are payable by the applicant, subject to any order of the Court to the contrary. (6) Such an easement may be - (a) released by the owner of the land having the benefit of it, or (b) modified by a deed made between the owner of the land having the benefit of it and the persons for the time being having the burden of it or (in the case of land under the provisions of the Real Property Act 1900) by a dealing in the form approved under that Act giving effect to the modification. (7) An easement imposed under this section, a release of such an easement or any modification of such an easement by a deed or dealing takes effect - (a) if the land burdened is under the Real Property Act 1900, when the Registrar-General registers a dealing in the form approved under that Act setting out particulars of the easement, or of the release or modification, by making such recordings in the Register kept under that Act as the Registrar-General considers appropriate, or (b) in any other case, when a minute of the order imposing the easement or the deed of release or modification is registered in the General Register of Deeds. (8) An easement imposed under this section has effect (for the purposes of this Act and the Real Property Act 1900) as if it was contained in a deed. (9) Nothing in this section prevents such an easement from being extinguished or modified under section 89 by the Court.
The Respondent submits that, as in Huntington, no application has been made under s 40 of the LEC Act by the Applicant prior to the hearing and, under the Court's Practice Note in respect Class 1 Development Appeals, it is inappropriate to now make such an application.
The Practice Note provides, relevantly: "Application for an easement under s 40 of the Land and Environment Court Act 1979 100. An application for an order under s 40 of the Land and Environment Court Act 1979 can only be made if: (a) the Court has determined to grant or modify development consent pursuant to proceedings on an appeal under the Environmental Planning and Assessment Act 1979; or (b) proceedings on an appeal under the Environmental Planning and Assessment Act 1979 with respect to the granting or modification of a development consent are pending before the Court. 101. It is inappropriate for parties to seek an order under s 40 of the Land and Environment Court Act 1979 at the hearing of an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979. 102. An application for an order under s 40 of the Land and Environment Court Act 1979 is to be made in Class 3 of the Court's jurisdiction and is subject to Practice Note - Classes 1, 2 and 3 Miscellaneous Appeals."
In principle, the Applicant has no objection to an application under s 40 of the LEC Act but considers it unnecessary given "management of stormwater through easements will only be permitted by Council in exceptional circumstances where no other practical solution is available." (section 2.3.2 of the LDCP, Control 4).
In this case, a practical solution is available in the form of temporary on site facilities that, according to Mr Gerardis, limits drainage volume and velocity to that experienced prior to development, consistent with Control 6 of Section 2.3.2 of the LDCP.

[8]

Conclusion

The Applicant's civil engineering expert, Mr Gerardis accepts stormwater discharge is likely on to the school site, and the Stormwater Plan factors in such an outcome (see [32]). It may be that some modest amount of stormwater discharge, within certain terms, may be considered an acceptable impact.
However, absent a unit of measure as to the volume or velocity of that discharge, the Applicant cannot acquit the persuasive burden required of it when the Court considers the likely impacts of that development in accordance with s 4.15 of the EPA Act, including the environmental impacts on both the natural and built environment.
It has been commonly held by the Court that "an applicant for development consent always bears a persuasive burden of proof: …This persuasive burden includes providing information and arguments that relevant environmental impacts can be satisfactorily addressed": Australian Protein Recyclers Pty Limited v Goulburn Mulwaree Shire Council [2006] NSWLEC 641.
The relevant environmental impact to be considered by s 4.15(1)(b) of the EPA Act is the impact of stormwater entering the adjoining school site, which is by its nature, an off-site impact caused by the proposed development impacting adjoining land.
When considering off-site impacts likely to result from a development, the critical factor is that there is a connection between the likely impact and the proposed development: Ballina Shire Council v Palm Lake Works Pty Ltd [2020] NSWLEC 41 ("Palm Lake") at [7].
Answering the factual question requires an evaluative judgment having regard to the degree of connection between the works and their impacts and the proposed development. (Palm Lake, at [24])
In the Palm Lake matter, offsite works were required to provide access to the site. Here, the likely impact is more immediate because it is the stormwater collected on the subject site, and beyond, that the experts agree will be imposed on the adjoining site.
The volume and velocity of the stormwater being imposed has not been quantified by the Applicant.
Were the OSD connected to a piped system, stormwater discharge from the OSD would be to a sealed, underground gravity network of pipes, presumably sized to accommodate the required flow volumes and velocity.
Due to the local topography, an underground gravity network of pipes would fall towards, and connect with, the piped system laid in Edmondson Avenue, to the west of the site, and not to Ninth Avenue which is uphill of the proposed OSD.
Instead, Section B of Drawing 705, re-produced below, helpfully depicts the means by which stormwater enters the rip rap rock bed, located at the boundary of the development site, in the event of overtopping the OSD.
The requirement for stormwater design cited in Control 1 and 2 of the DCP is to accord with Council's Engineering Specification. The Applicant's Stormwater Plan identifies Council's Water Sensitive Urban Design (WSUD), on-site detention requirements and Stormwater Drainage Design Specification.
The Court directed the Respondent to provide a copy of the Council's Engineering Specification referred to in Control 1 and 2 at the close of the proceedings, accompanied by written submissions from the parties where relevant.
The Respondent filed the Council's Engineering Specification 'Development Design D5 Stormwater Drainage Design' (Engineering Specification), and the Applicant provided written submissions in respect of the same.
While the Engineering Specification, cited in section 2.3.2 of the LDCP, Controls 1 and 2, does not identify TUFLOW as a requirement, it does, in my view, place a particular emphasis on velocity as a measure of stormwater flow.
Velocity is an element of Objective a) and d) of the engineering specification. "(a) To ensure that inundation of private and public buildings located in floodprone areas occurs only on rare occasions and that, in such events, surface flow routes convey floodwaters below the prescribed velocity/depth limits. … (d) To ensure all developments do not adversely impact adjoining, downstream or upstream properties. This includes surface flow paths and increasing water levels and velocities."
I note here that section D5.20(1) also contains guidance on dealing with scour protection at culvert or pipe system outlets based on energy dissipation requirements.
The controls at section 2.3.2 of the LDCP, when read as a whole, clearly preference stormwater design in new subdivisions to be "through a gravity network of pipes and overland flows generally following streets" (Control 2), being a control cited by Control 4 as a preferred design solution.
In circumstances where subdivision works occur prior to the completion of required trunk drainage works, as is the case here, Control 6 requires temporary on site facilities in order to limit drainage volume and velocity to that experienced prior to development.
While Mr Gerardis accepts stormwater will, or is likely to, overtop the limit of the rip rap rock bed and enter the school site, he is unable to quantify the volume or velocity of stormwater overflow on to the school site, and so is also unable to quantify the likely environmental impacts resulting from the proposed development.
The assertion made by Mr Gerardis at [62] is not demonstrated through calculation or modelling and so the Court must conclude that Mr Gerardis' evidence is based on facts that are assumed but not proven.
In written submissions, the Applicant contends that whether or not the Applicant was able, by means of calculation, to demonstrate the volume and velocity of stormwater entering the rip rap rock bed, the Respondent's ultimate position on the stormwater solution would remain unchanged.
With respect, this is not the question. Instead, calculations of the volume and velocity of stormwater entering the adjoining site from the rip rap rock bed, if prepared, may have provided the Court with sufficient evidence to consider the likely impacts of the development acceptable.
Mr Gerardis asserts that the impacts are limited to the surface of the adjoining school site being wet and soggy underfoot as a function of its own topography and drainage, and of the stormwater flow from the subject site. The contours evident on the site survey indicate a low point consistent with that suggestion.
However, the Applicant is without the evidence required to either support Mr Gerardis' assertions, or to demonstrate that worse would not result, such as scour and erosion over time.
Ultimately, I find that the Applicant's Stormwater Plan is inadequate for the reasons summarised at [31(1)] and [31(3)]. Relatedly, for the reasons set out above, I do not consider the proposed stormwater design to be a practical solution deserving of an alternative to the easement preferred by Council's controls. Accordingly, I find the application deserving of refusal of consent, pursuant to s 4.16(1)(b) of the EPA Act.

At a glance

Court

Decision date

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Judgment (10 paragraphs)

Parties

Cases Cited (4)