Roy Costa & Associates v Mildura Rural CC [2008] VCAT 1774

Roy Costa & Associates v Mildura Rural CC [2008] VCAT 1774 | Case summary | Zoe

[5]

This application for review relates to Mildura Rural City Council's, decision to refuse an application for subdivision of land into 36 residential lots in Irymple Avenue Irymple. There were several grounds for refusal but essentially these can be distilled down to the method of drainage and the reliance on First Mildura Irrigation Trust (FMIT) to accept responsibility for short and medium tem stormwater from the subdivision at least until the council completes its upgrade of its drainage infrastructure in Irymple.
The responsible authority expressed strong opposition to FMIT accepting drainage from the proposed subdivision on the basis that it was not the drainage authority for urban drainage purposes, it could not be relied on to maintain the drainage infrastructure and reliance on this method of drainage would undermine the Councils drainage and infrastructure programming for Irymple.
The applicant on the other hand argued that FMIT was willing to accept drainage from the Subdivision, for at least 10 years and this was an acceptable alternative method of draining the subdivision. The applicant also accepted its responsibility for payment of the nominated drainage infrastructure charges up front despite the inability of the Council to provide them until at least the year 2021, and possibly 2025.
First Mildura Irrigation Trust is not a party to the proceeding. Recently the Tribunal has been informed by the Council that FMIT is to be wound up by the State Government and its responsibilities transferred to Lower Murray Water. Whether FMIT continue or another authority take its over its responsibilities has little planning consequences in the outcome of this matter as I will explain later.
On 28 May 2008 I published a Preliminary Order seeking formal advice from First Mildura Irrigation Trust concerning its preparedness to be a party to a Section 173 Agreement under the Planning and Environment Act 1987 that would bind it to accepting and maintaining urban drainage from the proposed 36 lot subdivision for a period extending to about 2025.
I also provided detailed reasons for my decision that essentially outlined that other than drainage issues from the subdivision there was no other planning impediment to the grant of a permit.
First Mildura Irrigation Trust responded confirming that it is prepared to accept urban drainage and be a party to a Section 173 Agreement accepting drainage via a stormwater basin until 2025. It advised that the Agreement would be between FMIT and the owner of the land. It was silent about whether it understood the responsible authority would also be a party.
It also confirmed that it believed it had a legal right to enter into such agreements or arrangements, but it advised it would only continue to maintain its own existing drainage infrastructure and will not assume any responsibility for the stormwater basin and internal stormwater infrastructure required as part of the subdivision.
The applicant responded and confirmed it would accept the arrangements with FMIT. It claimed it would need to establish a body corporate to deal with internal drainage within the subdivision whereby a body corporate will be responsible for the maintenance of road and drainage infrastructure.
The responsible authority advised that it would not enter into a Section 173 Agreement allowing the proposed urban development to drain through FMIT rural drainage assets.

[6]

I consider that it is inappropriate to allow urban subdivision and rely on FMIT to accept drainage from the subdivision in the manner advised.
The responsible authority is the drainage authority charged with the responsibility of providing and maintaining drainage from urban land. It has recently, be-lately, embarked on an extensive drainage infrastructure study, including costing and preparing a detailed upgrade of its urban drainage infrastructure for Mildura and Irymple. Whilst it conceded that it had allowed applicants for subdivision to utilize FMIT rural drainage infrastructure for short periods, it considered it is unacceptable to rely on FMIT on a long- term arrangement and undermined its recently adopted drainage infrastructure program.
On the one hand, I can see reason for the applicant to pursue residential subdivision of land that is zoned Residential 1and the subdivision is, generally speaking, consistent with the purposes of the zone. On the other hand, there are decision guidelines in Clauses 65.01 & 2 of the Planning Scheme that call for consideration of the method of drainage, the orderly planning of the area, the existing and future use and development of land in the area and the functions of any body corporate.
Whilst FMIT provided an undertaking to accept stormwater from this urban subdivision via a stormwater basin, it has not provided any undertaking concerning the provision and maintenance of drainage within the subdivision, including the stormwater basin.
Whilst it may be possible to establish a body corporate to deal with maintenance of the stormwater infrastructure there is little information to convince me that this is a prudent to do so on a 36 lot residential subdivision, with potentially 36 or 37 different stakeholders, including the Council if it is required to accept some responsibility for the road infrastructure.
I am concerned about approving a subdivision that relies on FMIT (or its replacement) to accept drainage emanating from the subdivision, via the stormwater basin. The scheme will rely on a layering of participants, unrelated to the drainage authority to provide and maintain drainage infrastructure for a considerable period with little, if any, reference to the authority that actually is charged with that responsibility.
I am also concerned landowners in the subdivision may not fully appreciate the Council will not be the drainage authority if there is flooding or they may have false expectations about the levels of responsibility for maintaining different parts of the drainage scheme.
It may also establish expectations that other property owners, with similar size properties nearby, will expect to follow the method of drainage without fully appreciating the complexities of the proposed arrangement.
In the form presented I consider this does not amount to orderly planning and I am not satisfied that the Council's or my concerns have been addressed by the offer of FMIT. In some respects it has exposed the limitations of the offer because it does not seem equipped to provide and maintain stormwater within the subdivision.
Accordingly, there needs to be an effective drainage scheme for this subdivision that is capable of being implemented and maintained to the satisfaction of the responsible authority.

At a glance

Court

Decision date

Source

Judgment (7 paragraphs)

Roy Costa & Associates v Mildura Rural CC [2008] VCAT 1774 (28 August 2008)

Parties