MS Properties Pty Limited v Ryde City Council

Zhang v Canterbury City Council (2001) 115 LGERA 373; CASES CITED: Stockland Development Pty Ltd v Manly Council (2004) 136 LGERA 254; [2004] NSWLEC 472; Rose Consulting Group v Baulkham Hills Shire Council (2003) 58 NSWLR 159; 129 LGERA 165; [2003] NSWCA 266; .

APPLICANT Mr C McEwen SC INSTRUCTED BY LEGAL REPRESENTATIVES: Hunt & Hunt

Mr C Leggatt SC INSTRUCTED BY Pike Pike & Fenwick

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

05/11166 MS Properties Pty Limited v Ryde City Council

The consequence of the Court's decision in this appeal is the grant of development consent subject to detailed conditions. These conditions are not reproduced as part of this decision but are available for inspection at the Council. In addition, a copy the Court's Orders and the conditions may be obtained from the Court's registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders and conditions are available on the Court's web site at http://www.lawlink.nsw.gov.au/lec/

JUDGMENT 1 COMMISSIONER: This is an appeal pursuant to s 97 of the Environmental Planning and Assessment Act 1979 (the Act) against the refusal by Ryde City Council (the council) of Development Application 937/04 for the erection of a new two storey, split level, brick and slate tile dwelling at 44 Trelawney Street, Eastwood (the site). The dwelling would contain four bedrooms and a double garage. An elevated terrace and swimming pool are proposed to the rear of the dwelling. 2 The site is a vacant lot which is located on the eastern side of Trelawney Street between Clanalpine Street to the north and Bellevue Avenue to the south. It is rectangular in shape with a frontage of ~ 14 m, a depth of ~ 54 m and an area of ~ 751 sq m. It falls relatively steeply away from Trelawney Street and also has a diagonal crossfall towards the southeast corner. 3 The site was created as an allotment in the late 1920s and remained in joint ownership with an adjacent allotment until ~5 years ago when it was purchased by the present owners. 4 On the first morning of the hearing, I attended the site in company with the legal representatives of the parties and the experts involved in the case. During the course of that inspection I have had the opportunity to inspect the site (with which I had a deal of familiarity as a consequence of 2003 proceedings involving an earlier application) and to inspect the drainage system in the nearby park, as works would be involved to it if the applicant's proposed stormwater drainage system were to be accepted.

5 I note that, during the course of that inspection, a further modification was accepted to the plans dealing with the angle of the driveway and some landscaping in the north-western corner at the front of the property. This resolved the one outstanding streetscape issue raised by Mr Dickson, the Court-appointed urban design expert. As a consequence of that and a number of other matters discussed between Mr Dickson and Mr Grech, the applicant's town planner, the planning issues have disappeared from these proceedings, leaving only drainage and the proposed s 94 contribution as matters to be determined.

6 With respect to the drainage issues, I note that there is agreement between the council's engineer and the drainage adviser to the applicant that the applicant's scheme, subject to a modification requiring additional works downstream in the council reserve, would operate satisfactorily if all system elements function adequately. Thus I have been left to determine only the issue of whether or not it is appropriate to approve the proposed scheme in lieu of requiring the applicant to seek the compulsory acquisition of an easement to enable a gravitational scheme to be used. The history of the application 7 The application was submitted to the council on 12 October 2004. Various items of further information were provided to the council and the plans were amended twice. The application was refused, under delegation, on 6 June 2005, for the following reasons: 1. The proposal does not satisfy the Streetscape and Bulk & Scale provisions Council's Dwelling Houses and Duplex Buildings DCP No. 17A.

The proposal does not comply with the provisions of Council's Storm Water Management DCP No. 41.

The plans do not' demonstrate compliance with the `DA plan' commitments of the BA SIX Certificate submitted with the application.

Insufficient information has been submitted with the application that enables a proper assessment of the proposal.

The proposal will have an adverse impact on the amenity and streetscape of the area.

The proposal is contrary to the public interest. 8 An application for review pursuant to s 82A of the Act, which included further amended plans, was lodged with Council on 17 October 2005. It was also subsequently refused.

Compliance with planning controls applying to the site

9 The Ryde Planning Scheme Ordinance (the RPSO) applies to the site - which is zoned Residential 2(a). The proposed development is permissible with consent. 10 The RPSO contains one relevant development standard which is not satisfied. Clause 46(1)(a) specifies that a dwelling house shall not be erected on an allotment (that is not hatchet shaped) unless it has a site area of not less than 580 sq m; a frontage to a public road of not less than 10 m; and a width of not less than 15 m at a distance of 7.5 m from the alignment of the public road.

11 The site has a width of ~14.15 m at a distance of 7.5 metres from the public road and therefore does not comply with all the required standards in cl 46(1)(a) of the RPSO. 12 The objection process pursuant to State Environment Planning Policy No.1 - Development Standards (SEPP 1) is available to the applicant to seek to overcome the proposed development's non-compliance with clause 46(1)(a) of the RPSO. 13 The applicant's s 82A review application included such an objection to compliance with cl 46(1)(a) of the RPSO. The objection noted that the proposal provides an actual site width of 14.15 m at a distance of 7.5 metres from the alignment of the public road and that this represented a shortfall of 850mm or a variation of 5.6% from the relevant standard. 14 The objection advanced six reasons why strict compliance with cl 46(1)(a) of the RPSO was unnecessary and/or unreasonable. These were: 1. The subject site is an existing vacant registered Torrens Title allotment in an established residential area which contains examples of various allotment widths throughout the locality. 2. The proposed development is able to generally comply with front and side setbacks and the proposed 850mm variation is numerically minor, that is, the proposal seeks a 5.6% variation from the standard which will be largely imperceptible when viewed from Trelawney Street or surrounding properties. 3. The proposed building is not excessive in bulk and scale and will contribute to an acceptable streetscape impact. 4. The variation is within an acceptable tolerance level and will have no consequential effect in regard to ESD principles. 5. The current design of the proposed dwelling has allowed for site-specific consideration of relevant design quality objectives. 6. The proposed development achieves the minimum area of 580m2 and has a frontage to a public road in excess of 10 metres, as required by Clause 46(1)(a)(i) & (ii) of the RPSO. 15 The objection concluded: The proposed 5.6% variation to the minimum 15m site frontage required by Clause 46(1)(a)(iii) of the RPSO, as measured at a distance of 7.5 metres from the alignment of the public road, represents a minor numerical shortfall of 850mm from the required total site frontage of 15 metres.

The proposed variation will be largely imperceptible when viewed from Trelawney Street or surrounding properties, as the proposed development is able to comply with the side setbacks and floor space ratio controls and therefore, strict numerical compliance with the site frontage standard contained within Clause 46(1)(a)(iii) of the Ryde Planning Scheme Ordinance is both unnecessary and unreasonable in these circumstances. The failure to apply strict application of the site frontage standard will not create an adverse impact on the surrounding natural and built environment.

As such, the proposal provides for an orderly and economic development on the land in accordance with the objects provided at Section 5 of the Environmental Planning and Assessment Act 1979. 16 As I understand it, the council does not oppose the SEPP 1 objection. I am satisfied, particularly for the first two of the reasons advanced on behalf of the applicant, that it would be unreasonable to require adherence to the standard in cl 46(1)(a) of the RPSO. The SEPP 1 objection is, therefore, sustained. Issues in the proceedings 17 As earlier noted, by the commencement of the hearing, all the design issues had been resolved to the satisfaction of Mr Dickson, save with respect to one minor matter concerning the presentation to the street of the southern side of the dwelling. This was resolved during the inspection by a minor alteration to the angle of the driveway and the relocation some landscaping to the south of the driveway entrance. Thus there were no design matters remaining in issue. 18 As a consequence, there remained only two matters in contention between the parties.

19 The first, relating to a proposed contribution pursuant to s 94 of the Act, was merely a matter requiring determination of a condition of consent.

20 The second related to the acceptability or otherwise of the proposed stormwater disposal system in the context of the council's planning controls for such schemes. The consequence of rejection of the applicant's proposal would be to require the seeking of a compulsorily acquired downslope drainage easement.

21 For the reasons set out below, I have determined that this should not be required as, despite the planning controls, the proposal is acceptable.

Acceptability of the proposed method of stormwater drainage 22 The site has no direct access to the council's stormwater drainage system. Access to the system can only be obtained by either a pump up and out system into the drains on Trelawney Street (which drain to the north to join a trunk drainage system) or via gravitational flow piping along some easement over one or more downslope properties to reach a lower portion of the trunk drainage system. 23 The applicant proposes a pump up and out system with significant detention tanks on site (located under the dwelling); a pump; a back up pump in the event that the first pump fails; and a back up diesel generator in the event of a power failure. 24 The applicant also accepts that, if its proposal is accepted, some comparatively minor works will be required (at its expense) to portion of the trunk drainage system. These works would be required in a nearby council reserve through which the trunk drainage system passes. 25 The council accepts that this system will cope with the stormwater generated by the proposal if the system does not fail. It considers that the risk of failure is unacceptable. As outlined below, non-gravitational systems are prohibited. 26 Development Control Plan 17A - Dwelling Houses and Duplex Buildings (the dwelling house DCP), which took effect from 13 December 2000 and was modified on 2 March 2005, applies to the proposed development as does DCP41 - Stormwater Management (2 March 2005)(the stormwater DCP). 27 Essentially, this issue arises from the absolute prohibition on schemes such as that proposed by the applicant contained in the dwelling house DCP. 28 Part 2.6 - Design Element 6 - Water and Soil Management - of the dwelling house DCP sets out the relevant purpose as being: To control and minimise the impact of stormwater runoff and soil erosion on adjoining properties and downstream. 29 2.6.1 Performance Criteria sets out an number of broad objectives for which 2.6.2 sets out the Design Standards for their achievement, as follows: Stormwater Surface runoff from roofs, driveways and hard surfaces must be collected and piped by gravity flow to: o a street gutter; or o an appropriate Council pipeline; or o a system that meets Council's design standards - Development Criteria. On-site stormwater detention is required where a duplex or dwelling is being constructed, where more than 35% of the site is covered by impervious or hardened surfaces (Amendment No. 1).

Proposed developments which do not satisfy the above guidelines or the requirements for using on-site absorption systems, must secure an interallotment drainage easement through neighbouring downstream properties to allow collected rainwater runoff to be piped, by gravity, to a Council street or suitable pipeline. The applicant should secure this easement through negotiation with the affected property owner(s) before submitting their application to Council.

Pumpout systems or charged lines are not permitted. 30 For this application, the critical provisions are the absolute requirement in the third paragraph quoted above for a gravity system and the absolute prohibition of a pumpout system (as proposed by the applicant) in the final paragraph quoted. 31 The dwelling house DCP also sets out, in cl 4, the circumstances under which a departure from the performance criteria may be countenanced. Council may vary a Design Standard where the Council is satisfied the applicant has demonstrated in the Statement of Environmental Effects that the Performance Criteria have been met and variations in the Design Standards will result in a better design solution for the site and its surrounds.

32 The stormwater DCP contains two relevant provisions. The first is: 3.13 Piping Against the Natural Grade

The drainage layout should, where possible, follow the natural fall of the land. Council will only approve systems that drain against the natural grade of the land where: + Council has assessed that the receiving drainage system can accept the additional runoff from the new catchment area without having an adverse impact upon downstream property and/or public infrastructure (this will generally require a drainage study by a suitably qualified engineer to by submitted in conjunction with the application); and + Downstream property owners have indicated their unwillingness to grant easements that would permit the property drainage system to follow the natural fall of the land. + The roof gutters, downpipes and drainage system must be designed to cater for a 1 in 100 year ARI storm event. 33 The second provides: 3.11 Use of Pumps

Pumps may only be used to drain seepage and a minor amount of direct runoff from a basement car parking area. The area directing runoff to the pumped system shall not be greater than 10% of the total basement area. 34 Although there is some ambiguity in the first of these provisions quoted, nothing turns on this as they are generally consistent with the dwelling house DCP. As this DCP is precise and is the more disadvantageous for the applicant, I have tested the proposal against that DCP. As it is acceptable after assessment in the context of the strictures of the dwelling house DCP, I do not need to consider the stormwater DCP further.

35 The dwelling house DCP also deals with overland flow. It does so in the following fashion:

Properties which are located downstream of other lots, or are located within topographical low points, will have rainwater flowing over them during storm events. The failure to adequately consider this overland flow can result in dwellings being flooded, problems of scour and erosion and even hazardous flows which could endanger lives. Adequate consideration must be given to the effects of overland flow on persons and property. 36 The relevant performance standard is that overland flow must not be redirected in a manner which increases the quantity or concentration of flows through adjoining properties.

37 If all the applicant's proposed pump based measures fail, the system is to include a spreader so that any water discharged overland from the detention tanks to the downslope properties will not increase the quantity or concentration of flows through those properties. 38 Thus, in the event of complete failure of the pump-based system, water leaving the site would mimic the present natural flow rate and flow pattern of the overland flow but for a longer period. 39 Mr A Bewsher, a stormwater drainage engineer and flood plain consultant for the applicant and Mr A Philps, a senior development engineer employed by the council, gave evidence concerning the stormwater drainage issues. 40 Mr Philps agreed that a system that used the detention tanks and an appropriately designed spreader merely to mimic nature without any pumping would comply with the dwelling house DCP: COMMISSIONER: Q. Mr Philps, given your objection to a pump out system and the absence of presently a negotiated easement system, what do you say to the acceptability or otherwise of detaining the water on the site to a one in 100 rainfall event and subsequently discharging it on an overground flow at a rate no greater than the rate at which it would otherwise be discharged had it fallen on an undeveloped site? PHILPS: A. You're saying within the site as a dispersal--

Q. No, I am saying discharged to the downstream neighbours so that they-- A. Yeah, so discharging within the site so it flows overland.

Q. Yes. A. I guess in theory you couldn't object to that because you're not changing - the only thing you're changing is the location that that flow is going to be originating from at the moment so the whole site - you can't do that with a new building there, it's going to be concentrated somewhat.

Q. Provided as it were it went out the boundary in a fashion that mimicked nature, you have no objection to it? Is that right? A. I guess I couldn't, no.

Q. Do you think that downstream neighbours would? Would or could? A. Well it's going to be changing some the regime there. I think they could have some objection to it because it will mean you're - you're probably going to be discharging that water over a longer period of time.

Q. Yes, they'll be wetter long[er] won't they? A. Yes. 41 This would satisfy the housing DCP but is clearly environmentally unacceptable and would have an adverse impact on those who would receive a flow of water for a longer period of time. 42 Mr Philps also agreed with this conclusion: COMMISSIONER: Q. Assuming I now say to you Mr Philps that those are the three rather than the two options that I now see are legitimately available to me to require to deal with this development, in terms of the provisions of clause 4 of DCP 17A, that is a better design solution for the site and its surrounds, isn't it a better design solution to take the water away from an overland flow to the neighbours than to subject them to a more prolonged overland flow than they currently experience? PHILPS: A. Yes.

43 Then followed: Q. And if I were to conclude that's the position between those two options and if I were to conclude that the applicant had taken all reasonable steps to get an easement, voluntarily obtain an easement that would permit a piped gravity system to operate and had been unsuccessful, doesn't that leave me in the position that the only feasible and better solution in terms of DCP 17A is that which is proposed by the applicant? A. You could deduce that way.

44 Mr Bewsher expressed the opinion that: The pump system with a backup pump and a backup generator in my view is an acceptable risk and that risk of failure is no greater than risk of failure of the pipe system which could occur by blockage, it could occur by tree roots and damage on this inter allotment drainage easement. 45 He adhered to this view throughout.

46 Mr Philps did not accept this view and was of the opinion that the risk was unacceptable and the probability of failure was higher for the proposed system than a gravitational one. 47 Mr Bewsher had also drawn up a plan which showed three possible paths for gravitational drainage. All required easements over at least one property in other ownership. 48 In addition to the expert evidence, I had evidence that the applicant had approached a number of (but not all) the owners of properties over which any of Mr Bewsher's possible easement based gravity drainage routes were located. For each of these routes, a relevant property owner who would need to be involved had refused to consider an easement despite each being offered a substantial acquisition price by the applicant. 49 Mr Leggatt SC, for the council, submitted that the applicant's proposal could not be regarded as being a better outcome in the terms required by cl 4 of the dwelling house DCP and thus was incapable of acceptance in the face of the prohibition on pumpout schemes.

50 As to the emphasis I should give to these provisions in the DCPs and what flows from them, Zhang v Canterbury City Council (2001) 115 LGERA 373 deals, inter alia, with the issue of consideration of relevant provisions of a DCP in determining whether to grant development consent. From what was said in Zhang by Spigelman CJ (at para 75 on pp 386 and 387), three propositions emerge:

First, although the Court has a wide ranging discretion, the discretion is not at large and is not unfettered;

Second, the provisions of a DCP are to be considered as a fundamental element in, or a focal point to, the decision-making process particularly, if there are no issues relating to compliance with the Local Environmental Plan; and

Third, a provision of the DCP directly pertinent to the application is entitled to significant weight in the decision-making process but it is not in itself determinative.

51 However, it also follows from what was said in Zhang that, if a proposal does not meet the DCP's requirements, the Court may still grant consent, in appropriate cases, given a proper and genuine consideration of the DCP and having considered all other matters that are relevant under s 79C of the Act. 52 I satisfied that the applicant had taken all reasonable steps to obtain, by negotiation, an easement that would permit a piped gravity system to operate and has been unsuccessful. 53 I am satisfied that the proposal for: a system with significant detention tanks on site (located under the dwelling); a pump; a back up pump in the event that the first pump fails; and a back up diesel generator in the event of a power failure

coupled with: a spreader so that any water discharged overland from the detention tanks to the downslope properties will not increase the quantity or concentration of flows through those properties.

is acceptable. I have so concluded because I am satisfied that the "belt and braces + an extra spare pair of braces" nature of the design is such that the likelihood of total failure of all elements coupled with a complete disregard of any need to repair the failures is so remote as to be fanciful. 54 However, this is not the only reason for accepting the proposal and setting aside the provisions of the DCP (having carefully considered them in the process). 55 The second reason is that, with complete failure of the pump-based system, water leaving the site would mimic the present natural rate and pattern of the overland flow (but for a longer period). Thus, in terms of the strict technical requirements of the dwelling house DCP (as conceded by Mr Philps), the consequence of catastrophic failure would be to revert to a technically compliant scheme - albeit an undesirable environmental and downslope amenity compliance!

56 I am also satisfied that, in light of the applicant's endeavours to negotiate an easement, it would be unreasonable now to require the applicant to follow the statutory acquisition path and try to obtain a contested easement. 57 As a consequence, I have concluded that the proposed stormwater drainage system should be approved. Proposed s 94 contribution 58 The council seeks to require a contribution pursuant to its Section 94 Contribution Plan No.1 (2003 Amendment) (the s94 Plan) - a plan which was effective from 3 September 2003. 59 The applicant resists the imposition of such a requirement. 60 Mr A Nixy, a senior town planner employed by the council, gave evidence concerning the proposed contribution pursuant to the s94 Plan. 61 He initially gave evidence that it would not be appropriate to credit the applicant, when assessing any s94 contribution, with the five year's rates paid since the present owners acquired the site. As I accept his evidence in this regard, this does not require further consideration. 62 Mr Nixy outlined the process by which the council generally levied such contributions. This evidence was as follows: COMMISSIONER: Q. Well Mr Nixy you're saying to me as I understand it that it's the act of subdivision that would trigger the s 94 contribution, is that correct? A. Council's standard approach is to charge it on the subdivision.

Q. Charged on subdivision. It's not charged on the building of a house? A. Yeah that's the standard.

Q. And why should I not regard the act that would have triggered a s 94 contribution with respect to this allotment as happening in 1929 or 1930, whichever the case might be and therefore contrary to the position that was put to you by me without prejudice of a $5,000 offset I ought not decline the contribution in its entirety? A. I mean I'm not aware of any evidence of a contribution of any amount that was paid when the actual subdivision of the ..(not transcribable).. estate was--

Q. That's not the question I asked you, the question I asked you is why should I not regard the act as triggering any possible contribution as having occurred in 1929? A. Well you may also take that approach.

Q. Are you aware of any other instances with respect to existing allotments in your city where s 94 contributions have been sought at times other than subdivision? A. Yeah I mean I've dealt with applications where the s 94 is concerned on the actual, although to be honest those have been cases where it's been an existing dwelling and they've built a duplex so the lot, there's been no subdivision involved but they've increased the number of dwellings but as far as actual subdivision undertaken in modern times that would as far as I know be the time when we--

Q. Triggered by the act of subdivision? A. Yeah.

LEGGAT: Q. The s 94 plan shows in the appendix which has the quantification that the amount is levied on a dwelling house. What's your basis for saying that it's your understanding that the detached dwelling component where it says, per dwelling, is an item that becomes payable at the subdivision stage rather than at the application for a dwelling stage? A. In the event of a subdivision application on its own council would ascertain either through obvious assessment of the plan whether a dwelling could be built there or whatever form of residential development and we would get, obviously if there was any possibility from the planners they might be able to get maybe two dwelling or something like that on there then we would seek clarification from the applicant on that but obviously in the event that we charge s 94 on the subdivision for a dwelling but then they came back for a duplex and I think we would be quite justified in charging the extra contribution on the duplex application for the second dwelling.

COMMISSIONER: Q. Mr Nixy, "would think" is a little imprecise. Are you aware of any instances where that's occurred? A. Not in my experience, no. 63 It is clear that the s 94 Plan is one which has been adopted and applied and should therefore, prima facie, be followed (Stockland Development Pty Ltd v Manly Council (2004) 136 LGERA 254; [2004] NSWLEC 472). 64 I also accept that the terms of the plan also imply that a contribution would be triggered by the construction of a new dwelling. 65 However, I do have a broad discretion to vary such a plan if its application would be unreasonable (Rose Consulting Group v Baulkham Hills Shire Council (2003) 58 NSWLR 159; 129 LGERA 165; [2003] NSWCA 266). 66 The consistency by a council in the application of a policy is also a factor of significance in determining how it should be treated by the Court (Stockland). 67 In the present case, on the evidence available to me, the plan has been applied in a consistent pattern which would exclude circumstances such as exist in the present case when what is proposed is a new dwelling on an allotment which has been in existence for some seventy or more years. 68 As the allotment has been in existence for well over seventy years and I have no evidence of any other imposition of such a contribution in similar circumstances and Mr Nixy's evidence, as set out above, that the council consistently applied such contributions for the creation of second or multiple dwellings, not for the primary dwelling, I am satisfied that it would be both unreasonable and inconsistent to impose this condition in these circumstances. Conclusion 69 As I have determined that the proposed stormwater disposal system is acceptable, I do not need to consider what would be the procedural consequences of imposing a requirement that the applicant obtain an easement using statutory processes.

70 As consequence of what has been discussed above, I have determined that the dwelling should be approved as now proposed and that the applicant not be required to pay a s 94 contribution.

Orders 71 The orders of the Court, therefore, will be: 1. The appeal will be upheld; 2. Objection pursuant to State Environmental Planning Policy No 1 to compliance with cl 46(1)(a) of the Ryde Planning Scheme Ordinance will be sustained; and 3. Development Application 937/04 for the erection of a new four bedroom, two storey, split level, brick and slate tile dwelling with swimming pool and double garage at 44 Trelawney Street, Eastwood will determined by the granting of development consent subject to conditions (which will be Annexure A to the orders); 72 The exhibits are returned. 73 As there will need to be revised plans to reflect the final agreed position between Mr Bewsher and Mr Philps on the configuration of the detention tanks and I consider it desirable that a design of the proposed spreader be included in the approved plans, I give the following directions: 1. The applicant is to file and serve revised plans (reflecting the final agreed position between Mr Bewsher and Mr Philps on the configuration of the detention tanks together with a design of the proposed spreader) by the close of business on 5 May 2006; 2. The respondent is to file and serve revised conditions of consent, electronically by e-Court and formatted in accordance with Practice Direction 2 of 2005, (together with a separate e-Court communication being sent advising that these have been filed) by the close of business on 5 May 2006; 3. The matter is set down for callover on 10 May 2006; 4. Liberty to relist before me on two days notice if any matters require further consideration arising out of directions 1 and 2; and 5. If directions 1 and 2 are complied with and no matters covered by either of them require further consideration, I will make orders in chambers and vacate the callover.

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