Trevenar Pty Ltd v Canterbury Bankstown Council

1. The applicant has uploaded the Further Amended Application on the NSW Planning Portal on 12 August 2022; 2. The applicant has filed the Further Amended Application with the Court on 12 August 2022.
2. The Respondent filed an Amended Statement of Facts and Contentions filed 19 July 2022 (ASOFAC) (Ex 1) following the earlier amendments to the Proposed Development by the Applicant pursuant to Notice of Motion on 24 June 2022.
3. The parties filed agreed Draft/Proposed Conditions of Consent on 23 August 2022 (Ex 16) and I make the following observations regarding these: 1. The Description of the development is for 7 residential allotments which is not accurate; 2. Condition 1.1B requires amendment of draft plan of subdivision (Ex C, Tab 3) to be consistent with Masterplan drawings DA100 Issue E, DA202 Issue E and DA200 Issue V (Ex D), all of which contain a list of amendments and at amendment number 8 all drawings refer to the dedication of the "Lot 2 access handle" and none of these drawings label that 'access handle' as Lot 8; 3. Condition 5.3 also refers to the development being a 7 lot subdivision. 4. Condition 7.8 purports to impose obligations on occupants of the Site "during occupation and ongoing use of the building" [emphasis added] to ensure that all elements of the stormwater and wastewater detentions and treatment devices (including draining systems, sumps and traps, and on-site detention), "are regularly maintained (every 6 months), to remain effective and in accordance with any positive covenant." No buildings are proposed as part of the Proposed Development. 5. I also note the references to Lot 8 in the Stormwater Plans prepared by Telford Civil dated 1 August 2022 (Ex A) as follows: 1. DWG100 Issue D Erosion and Sediment Control Plan shows on Lot 8 "Clean Water Diversion Swale" and "Proposed Swale to Cater for External overland flow" 2. DWG200 Issue D Bulk Earthworks Plan shows Lot 8 marked as "Driveway 2"
4. The Respondent's case is that the Proposed Development will result in a tragedy of the commons and will not result in orderly development of land contravening one of the objects of the EPA Act, namely, to promote the orderly and economic use and development of land (s 1.3(c), EPA Act).
5. There are two reasons relied on by the Respondent to support the contention that the Proposed Development is not orderly and economic use and development of land. The first reason is that the Proposed Development will result in a tragedy of the commons. The Respondent explains this in closing as follows (Transcript 19 August 2022, page 22 at par 11): "When I speak about tragedy of commons, it goes to all the common elements associated with the subdivision, so the OSD system and particularly the underground elements of the OSD system is the keenest and sharpest point of this, but it also extends, obviously, to the swales which serve the OSD system, or an aboveground part of it, the roadways which people share, the lights and how they're going to work. So, the tragedy of the commons of how these interrelated elements are supposed to work in Torrens title subdivision."
6. The Respondent stresses that the Proposed Development is a Torrens title subdivision and submits that the subdivision seeks to address 'common' concerns or interrelated elements of the subdivision by way of easements. I will come back to the easements. In opening the Respondent submits that: "There's no common property, there's no strata. The OSD, the underground OSD, is split across lots 1, 2, 3, 4, 5 to be supported by a positive covenant requiring those owners to maintain the OSD, but the OSD system is fed by a system of swales and grates that you can see marked as "C" on the subdivision plan. So they go around the boundary of the various lots." (Transcript 17 August 2022 page 29 at [47])
7. The second reason the Respondent contends that the Proposed Development is not orderly and economic use and development of land is that the Proposed Development is not in the public interest because the Respondent Council proposes to rezone the Site to RE1 Public Recreation and that the Proposed Development would be prohibited development in the RE1 zone. (contentions 3 and 7, ASOFAC)
8. The Respondent's public interest submission extends beyond the rezoning planning proposal and permeates the balance of the other remaining contentions summarised by the Respondent in opening as follows (Transcript 17 August 2022 page 29 at [20]): "council presses contentions in respect of flooding and stormwater, being contention 5, in particular, contention 5K in relation to the OSD system and the associated contention 7, being public interest arising out of that. We press contention 6 in respect of waste and associated contention 7, public interest. We press contention 4, in particular, 4(f) and 4(j) for the reasons I've just mentioned, and associated with that contention 7. In making submissions in respect of public interest in relation to the rezoning proposal, flooding and stormwater, waste and traffic, as I said, we'll be making submissions in respect of the likely impacts closely aligned with public interest arising out of the stormwater flooding, waste, traffic arrangements, and I refer again to s 1.2(2)(c) of the LEP, to the developments of design and type, support, amenity and character of the area enhances the quality of life."
9. The Applicant submits in opening that the real issue for the Court to grapple with is whether a Torrens title subdivision is an appropriate outcome notwithstanding the Respondent's argument that 'management of some of this infrastructure is harder' in a Torrens title subdivision. (Transcript 17 August 2022 page 37 at [30])
10. The Respondent listed the issues that are pressed in contention namely the following: 1. Flood planning and stormwater management for the Torrens title subdivision including the maintenance of the Onsite Stormwater Detention (OSD) system and the swales contended as follows (Contention 5(k)): "Stormwater Management/Flooding 5. The Application should be refused because inadequate management and disposal of stormwater and inadequate information relating to flood management and evacuation and does not comply with the objectives for Flood planning in Section 5.21 of CLEP 2012 and stormwater management in Section 6.4 of CLEP … (k) The location of the OSD is of a concern as owners of particular Lots will be burdened to maintain OSD servicing multiple Lots. An alternative arrangement should be sought." 1. The public interest of giving weight to the Council's Planning Proposal to rezone the Site from R2 Low Density Residential to RE1 Public Recreation which would result in the Proposed Development being prohibited development in the RE1 Public Recreation zone (Contention 3). The Respondent submits that pursuant to s 4.15(1)(e) of the EPA Act, in determining a development application, a consent authority is to take the public interest into consideration. Contention 7 is also about the public interest in general terms. Contention 3 is pleaded as follows: "Planning Proposal The Application should be refused as it will not meet the intended future outcome of the proposed Planning Proposal which seeks to rezone the Site from Zone R2 Low Density Residential to Zone RE1 Public Recreation." The Respondent clarifies in opening as follows (Transcript 17 August 2022 page 28 at [45]): "we're not submitting that the planning proposal is imminent or certain in the Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) sense. That's not the basis of the argument. We are putting forward something that goes to public interest." 1. Site planning in the context of no public access to Peace Park from King Street, Ashbury (Contention 4(f)) "The Application is not compatible with the site planning controls of the Canterbury Development Control Plan 2012 and Canterbury Local Environmental Plan 2012." Particular (f) reads as follows: "4(f) The site planning is inadequate and required more careful design in relation to access, as per the Planning Principles in Parrot v Kiama [2004] NSWLEC 77. The inadequate access to the further lots 2-7 has potential significant impacts on existing and proposed neighbours and requires improvement." 1. Particular (j) of Contention 4 reads as follows: "4(j) Public access from King Street to Peace Park has not been provided. This is contrary to along the Aims of the Canterbury LEP at 1.2(2)(c) to ensure that development is of a design and type that supports the amenity and character of an area and enhances the quality of life of the community."
11. The parties rely on five Joint Expert Reports as follows: 1. Planning (JER Planning) prepared by Lee Kosnetter for the Respondent and Andrew Darroch for the Applicant and filed 9 August 2022 (Ex 2); 2. Stormwater (JER Stormwater) prepared by Abdel Rahman Albaba for the Respondent and Joe Bacha for the Applicant filed 2 August 2022 (Ex 5); 3. Waste (JER Waste) prepared by Narelle Bowly for the Respondent and Edward Saidi for the Applicant filed 1 August 2022 (Ex 4); 4. Traffic (JER Traffic) prepared by Abdel Rahman Albaba for the Respondent, Michael Logan for the Applicant and Joe Bacha for the Applicant filed 2 August 2022 (Ex 3); 5. Supplementary Traffic and Waste Joint Expert Report prepared and tendered on the second day of the hearing (Ex 11).
12. Before dealing with the contentions and the principle issues in dispute, I note the following summary from the Respondent's opening statement that goes to the satisfaction of jurisdictional prerequisites and other agreed or resolved merit matters: 1. Firstly, there is no contention raised regarding contamination of land in the context of s 4.6 of the State Environmental Plan (Hazards and Resilience) 2021 where the Applicant has filed a Detailed Site Investigation Report (Tab 9, Ex C) and a Remediation Action Plan (Tab 10, Ex C). I am satisfied that any contamination risk is relatively low and that the Site is suitable for remediation for residential use. 2. Similarly, there is no contention raised in relation to the State Environmental Planning Policy (Infrastructure) 2021 s 2.119 where the Applicant has filed a Traffic Assessment Report prepared by Terraffic Pty Ltd dated 10 June 2022 (Tab 14, Ex C) relating to the frontage of the Site to King Street, being a classified road. The Traffic Assessment Report concludes at page 17 that "in the circumstances, it can be concluded that the proposed development has no unacceptable traffic, access or safety implications." 3. The Respondent does not raise any contention in relation to compliance with the minimum subdivision lot size of 460m2 (cl 4.1, CLEP) or floor space ratio (cl 4.4, CLEP). 4. In relation to Heritage, the Site is located within the Ashbury Heritage Conservation Area and the Court is required to consider cl 5.10(5)(b) of the CLEP. The Applicant has provided a Heritage Impact Statement (HIS) (Tab 9, Ex B) and the Respondent does not raise any contention in relation to heritage conservation. I note that the HIS concludes at page 10 that there is no substantive impact and a conservation management plan is not warranted. 5. Clause 6.1 of the CLEP deals with acid sulfate soils to ensure that development does not disturb, expose or drain acid sulfate soils and cause environmental damage. The Respondent submits that the Site is outside of the area of concern for acid sulfate soils and raises no contention for acid sulfates (Transcript 17 August 2022, page 14 at [15]).
13. I will now address the three principle contested issues starting firstly with Contention 4 Site Planning, particulars (f) and (j) in the context of the Respondent's argument that the Proposed Development is not orderly and economic development because of site planning. Secondly, I then go on to consider whether the Proposed Development is not orderly and economic use and development of the Site because it will result in a tragedy of the commons in the context predominantly of Contention 5 Stormwater Management and Flooding. The Respondent raises jurisdictional concerns in relation to stormwater and flooding (cll 5.21 and 6.4 of the CLEP) which I will also deal with in the context of Contention 5. Thirdly and finally, I will consider the public interest as particularised in contentions 3 and 7 and specifically whether granting development consent to the Proposed Development is not in the public interest because the Site is proposed by the Respondent to be rezoned as public land.

Consideration of whether the Proposed Development is not orderly and economic use and development of land because it is not compatible with the site planning controls (Contention 4 Site Planning particulars (f) and (j))

1. Particulars (f) and (j) of Contention 4 in the ASOFAC have been reproduced/quoted above.
2. Particular (f) of Contention 4 includes two aspects. The first aspect of particular (f) invokes the Planning principle in the decision of Parrott v Kiama [2004] NSWLEC 77. This is a decision of Roseth SC where he adopted a planning principle in relation to when a residential subdivision application should impose constraints on future development and is articulated in par 17 and 18 of the judgment as follows: "17 When should a subdivision application include information on the buildings to be built on the resulting allotment(s)? It is normal practice in Australia to subdivide land without constraints on the buildings that can later be built. While this practice is appropriate in most cases, it is not always so. I have adopted the planning principle that a subdivision application should provide constraints on future buildings when the proposed allotments are smaller than usual, or environmentally sensitive or where significant impacts on neighbours is likely and needs careful design to minimise them. 18 In this case the proposed battleaxe allotment is not small, though it is much smaller than its neighbours. It is environmentally sensitive because of its extreme steepness. It is in a location where the adjoining allotments all have rear yards and thus it breaks the established building line. Any future building on it will be closer to the Stafford Street properties than other houses are to their southern neighbours. The likelihood of adverse impact is high. This is not to say that an acceptable dwelling cannot be designed on the allotment, only that it would require a higher than usual level of design skill. The design of the future house (at least the outline design) is not a matter that is appropriately left till later."
3. I note firstly, that the proposed residential lots 1 to 7 are all larger than the minimum lot size prescribed by the CLEP and secondly, that compliance envelopes are provided by the Applicant and that these drawings prepared by PDH are included as proposed approved plans in draft consent condition 1, namely DA900 - Dwelling A - Compliance, issue D dated 6 June 2022, DA920 - Dwelling B - Compliance, issue E dated 4 August 2022, DA930 - Dwelling C - Compliance, issue F dated 4 August 2022 (Ex 16). I find that this aspect of the particular (f) of Contention 4 is resolved.
4. The second aspect of "inadequate access" as referred to in particular (f) is about matters raised in particulars (d) to (e) of Contention 4 which have been addressed. The Applicant notes that access arrangements to the future lots 2-7 are otherwise agreed by the traffic and waste experts (Ex 11). I also note that the Planning experts agree in JER Planning, Ex 2 at par [2.3.4] that "access to Lots 2 to 7 have been appropriately resolved."
5. This then leaves the residual concern about nuisance vehicles and the concern that the private road provides an invitation to trespass. The latter concern I come back to in the context of particular (j) of Contention 4 below.
6. The evidence In JER Town Planning (Ex 2) at par [2.3.9] and par [2.3.11] is that effective management of no stopping zones on both side of the private road is important and enforceability has not been demonstrated, which the Respondent submits gives rise to unacceptable impacts from nuisance vehicles. (Transcript 17 August 2022, page 24 at par [48]).
7. The Applicant submits that development assessment proceeds on the basis of lawful compliance with conditions of consent: Jonah Pty Ltd v Pittwater Council [2006] NSWLEC 99 and that development assessment does not proceed assuming people to act unlawfully.
8. Moving on the Particular 4(j) of Contention 4 which related to public access from King Street to Peace Park. The language used in this particular seems to criticise the Proposed Development for not providing public access to Peace Park through the Site which is private property. The Respondent made submissions that as public access is not proposed, the design of the Proposed Development invites trespass of private property to access the public park (Peace Park) which is not in the public interest and the Respondent relies on one of the aims of the CLEP at 1.2(2)(c) which reads as follows: "(c) to ensure that development is of a design and type that supports the amenity and character of an area and enhances the quality of life of the community,"
9. The Respondent in opening submits as follows: "I'd suggest that someone walking their dog in the park, Commissioner, could very easily not appreciate that this is private property and walk through the bollards and through the private space." (Transcript 17 August 2022 page 25 at [10]) […] "So in that sense we say condition 4J is not resolved. We accept that residents do not have a God‑given right to access the park via private land, but as set out in contention 4(j), one of the aims of the LEP, as set out in s 1.2(2)(c) of the LEP, which is on p 1 of the original bundle in exhibit 7, is to ensure that developments of design and type that supports the amenity and character of an area and enhances the quality of life for the community, and we say the arrangements for access to the park, whether you construe that as being access for the private residents or actual but not permitted access for the rest of the residents, do not achieve this because they provide the public with apparent access to the park and invite trespass, but it's really a private access to the park." (Transcript 17 August 2022 page 25 at [16]-[26])
10. The Applicant, in opening submits as follows (Transcript 17 August 2022, page 35 at [36]): "planning experts do not agree that the land to the south of the driveway should be provided by easement to the council to provide access to King Street. So what is actually, if this is put by the council, sotto voce, not put directly to the Court, is the idea that the Court should, either by refusing the application or by the imposition of a condition, require my client to provide an easement for the benefit of the council to facilitate members of the public walking through private land to access the park. Now, Commissioner, you will appreciate there's simply no power to do that. If it follows there was no power to do it by condition, it would be an irrelevant consideration to ask the Court to take that into account somehow under the public interest. There is no power for the council to require the donation of a propriety interest to it when that has not been planned for, it's not part of any contribution plan, so to somehow say, "Well, it wasn't agreed to give it to us, so we'll ask the Court to just acknowledge that somehow in the public interest the application warrants refusal"."
11. In Written submissions the Applicant sets out the argument in response to contention 4(j) as follows: "The Court could not impose a condition requiring a forfeiture of a property right from the site without finding a way in which access across the site by members of the public is something arising from the development: Cavassini Pty Ltd v Fairfield City Council [2010] NSWLEC 65 at [20] Craig J. Further, and perhaps more significantly, there is simply no power to require a dedication or forfeiture of a property right in the absence of a contributions plan endorsing that outcome: Australian International Academy of Education Inc v The Hills Shire Council [2013] NSWLEC 1 at [70] per Craig J."
12. The Applicant submits further that "the driveway presents as such and any residual concern about trespassing is resolved by a condition requiring a fence at the end of the driveway." (Applicant Speaking Note page 4)
13. I am satisfied firstly that the Respondent does not seek the forfeiture of any property right. Secondly, I am satisfied that the trespass concern and the nuisance vehicle concern are adequately addressed and resolved by the proposed conditions of consent 1.1C(g) and (h) which require amended plans to provide no parking signs along the driveway and for the provision of a gate/fence at the end of the driveway. I also note proposed condition of consent 7.9 prohibiting parking along the driveway of the development for the life of the development.

Contention 5 Stormwater Management/Flooding: The tragedy of the commons and jurisdictional prerequisite of cl 5.21 and 6.4 of the CLEP

1. Contention 5(k) of the ASOFAC remains an unresolved contention and reads as follows: "(k) The location of the OSD is of a concern as owners of particular Lots will be burdened to maintain OSD servicing multiple Lots. An alternative arrangement should be sought."
2. In essence, it is the management, not the design of the OSD System which remains of concern to the Respondent. The Applicant submits that this concern is resolved in two ways. First, by the creation of registered covenants to benefit and burden each lot. I come back to the s 88B Instrument later. The second way the Applicant submits that the concern of the management of the OSD System is resolved is by a condition of consent. "These are regular and orderly means for management objectives to be achieved."
3. I do not agree that the concerns can be resolved in the two ways proposed by the Applicant for two reasons, namely, although the design of the OSD may be satisfactory, the ongoing management and maintenance of the OSD results in uncertainty and, in my view, not orderly development. I accept the evidence of the experts where they agree that a community title scheme would be a better outcome to address the concerns. Secondly, I am not satisfied that the Proposed Development sufficiently complies with the jurisdictional prerequisites of cll 5.21 and 6.4 of the CLEP. I elaborate on these reasons below.
4. The Respondent refers the Court to cl 5.21 Flood Planning, and cl 6.4 Stormwater Management of the CLEP. Firstly, cl 5.21 of the CLEP 2012 is concerned with flood planning and states the following objectives (cl 5.21(1)): (1) The objectives of this clause are as follows - (a) to minimise the flood risk to life and property associated with the use of land, (b) to allow development on land that is compatible with the flood function and behaviour on the land, taking into account projected changes as a result of climate change, (c) to avoid adverse or cumulative impacts on flood behaviour and the environment, (d) to enable the safe occupation and efficient evacuation of people in the event of a flood.
5. Clause 6.4 of the CLEP is concerned with stormwater management and its stated objective is to minimise the impacts of urban stormwater on land to which this clause applies and on adjoining properties, native bushland and receiving waters. The Respondent also draws the Courts attention to the word "managed" in the context of stormwater and the objectives and controls in Part B5 of the Canterbury Development Control Plan (CDCP). In particular Objective 2 of B5.1 which is to ensure drainage systems collect and convey stormwater runoff so as to present minimal nuisance, danger or damage to adjoining properties. Also, Part B5.2 of the CDCP control C1 calls for a stormwater drainage management plan to illustrate how stormwater runoff will be managed.
6. Part B5.6.3 Control C1A of the CDCP requires that the OSD is to provide for the harmless escape of overflows in the event that an outlet becomes blocked and the storage is completely filled. In other words, the Respondent notes that if the system of the Proposed Development does not work, the overflow will be where the existing council stormwater pipe is now going out and will overflow into the neighbouring properties downhill to the south and the ponding of water is going to be in the neighbours' property. (Transcript 17 August 2022, page 15 at [10])
7. The Respondent seeks to have regard to the draft DCP (par 14 and 15 of ASOFAC, Ex 1, set out the background and status of the planning proposal for the new consolidated LEP and the new DCP) as a matter of public interest (see par 3A of the Council Resolution which provides an express intention that the new consolidated DCP will apply to development applications lodged on or after the date that it comes into force. The Respondent submits that as a matter of public interest, the relevant provisions of the draft DCP "provides illumination on the practical management of OSD systems. It's not inconsistent with, but, rather, provides more information about the responsible management of our OSD system." (Transcript 17 August 2022, page 16 at par 3[0])
8. I accept the Applicant's submission that the Court is not bound by the draft DCP for the purposes of the assessment of the Development Application pursuant to s 4.15 of the EPA Act.
9. The Respondent raises the jurisdictional prerequisite set out in cl 5.21(2) and (3) of the CLEP which reads as follows: (2) Development consent must not be granted to development on land the consent authority considers to be within the flood planning area unless the consent authority is satisfied the development - (a) is compatible with the flood function and behaviour on the land, and (b) will not adversely affect flood behaviour in a way that results in detrimental increases in the potential flood affectation of other development or properties, and (c) will not adversely affect the safe occupation and efficient evacuation of people or exceed the capacity of existing evacuation routes for the surrounding area in the event of a flood, and (d) incorporates appropriate measures to manage risk to life in the event of a flood, and (e) will not adversely affect the environment or cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of river banks or watercourses. (3) In deciding whether to grant development consent on land to which this clause applies, the consent authority must consider the following matters - (a) the impact of the development on projected changes to flood behaviour as a result of climate change, (b) the intended design and scale of buildings resulting from the development, (c) whether the development incorporates measures to minimise the risk to life and ensure the safe evacuation of people in the event of a flood, (d) the potential to modify, relocate or remove buildings resulting from development if the surrounding area is impacted by flooding or coastal erosion.
10. The Site is not within a flood planning area if one were only to refer to the Map within the CLEP (Ex 7 folio 11 Map). However, the respondent has undertaken flood studies for catchments affected by stormwater including the Final Overland Flow Study for Canterbury LGA Cooks River Catchment dated 19 April 2016 (Cooks River Catchment Study) which shows flood affectation of the Site. (Ex 8, folio 367). The flood affectation of the Site is not contested.
11. The Applicant relies on a Flood Impact Assessment prepared by Telford Civil dated 8 June 2022 (Ex C, Tab 6) which concludes at page 13 the Site is characterised as low hazard. (Transcript 19 August 2022, page 12 at par 7). The Applicant submits that Mr Bacha is confident in his design of the OSD system and the way that the design expressly mimics existing conditions on the land. (Transcript 19 August 2022, page 9 at par 18)
12. The Applicant submits that as Mr Bacha's evidence is that what the stormwater system has been designed to do is largely be captured in a way that would mimic existing conditions, "even if we endorse the apocalyptic hypothetical of a massive failure in the stormwater system, all it does is replicate existing conditions." (Transcript 19 August 2022 page 11 at par 13).
13. The Respondent in closing, (Transcript 19 August 2022 page 25) submits that "the infrastructure is designed to operate as one integrated system, and it's the distinction between design and management that's the key concern. It may be designed to work beautifully, but it is designed in an abstract scenario."
14. I accept Mr Bacha's evidence regarding the design of the OSD system for the Proposed Development however I am not satisfied that the management is sufficiently certain nor that in the event of mismanagement or no management, there will be no adverse impacts. In order to reach this conclusion I have considered the elements of the Proposed Development which address stormwater management.
15. The Applicant relies on the Site Based Stormwater Management Plan prepared by Telford Civil, Issue A dated August 2021 (SMP) (Ex B, Tab 8). Post Construction management of erosion and sediment at cl 4.2.3 on page 15: "1. The Contractor/Development will be responsible for the maintenance of erosion and sediment control devices from the possession of the site until the site is accepted, or until stabilisation has occurred, to the satisfaction of the superintendent and development; 2. Key stormwater quality improvement devises requiring maintenance during the operational phase of the project following construction are the bio-retention areas and the gross pollutant traps. Maintenance requirements for these devices consist of regular storm event inspection to ensure; a. Sufficient vegetation within bio-retention areas; and b. Ensuring no erosion has occurred 3. Regular mowing/harvesting to ensure vegetation is maintained at acceptable levels; 4. Removal of litter within verges, swales and bio-retention areas, 5. Regular trash removal, 6. The Sediment and Erosion Control Management Plans should be provided to all people involved with the site, including sub-contractors, private certifiers, home owners and regulators."
16. The conclusion of the SMP is that "by implementing the proposed stormwater quantity and quality management measures, the proposed development will ensure no worsening effects downstream of the proposed development and conforms to best engineering practices." (page 16)
17. A Flood Impact Assessment Issue B dated June 2022, (Ex C, Tab 6) is relied on by the Applicant and Mr Joe Bacha, stormwater expert for the Applicant was asked a number of questions about this document during the proceedings.
18. In cross examination, the Applicant's stormwater expert confirmed that failure to maintain the OSD system could give rise to stormwater spilling into the downstream neighbouring properties. Mr Bacha agrees further that if the OSD system was never maintained and there was a blockage, it would not function as designed. (Transcript 18 August 2022, page 28 at pars 14 and 36) The Court must consider the likely impacts of the Proposed Development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality, (s 4.15(1)(b) of the EPA Act)
19. Mr Bacha explained the colouring of Figure 3-4 in the Flood Impact Assessment which is titled "1% AEP Difference Map" reproduced below at Fig 3. His evidence is that lighter pink is generally acceptable by council "as that is considered to be the tolerance of what's considered acceptable for a rising water level due to the software's capability." (Transcript 18 August 2022 page 30 at par 38). Mr Bacha explains further, and most importantly that "the dark pink is generally not acceptable if it occurred outside the subject site, so if we had dark pink in a downstream property somewhere, that's an adverse impact - that's considered an adverse impact on a downstream property. Therefore, we haven't met the objectives of the DCP." (Transcript 18 August 2022, page 30 and 31 at par 48 and par 1 respectively) Fig 3: Fig 3-4 of Flood Impact Assessment, Ex C, Tab 6 marked by witness, Joe Bacha
20. The Respondent notes that the areas coloured pink have more flood affectation in a 1% AEP flood. "The darker the pink, the more the increase in flood affectation for an area. The fact that there are areas that are coloured pink, and coloured green, shows that the stormwater will not behave in an identical manner after the development. The development will cause changes to flood behaviour." (Respondent Written Submissions, page 6)
21. I also note that the Stormwater modelling in the Applicant's Flood Impact Assessment shows changes to the flood affectation (shown in lighter pink in Fig 3-4 above) on Lot 8.
22. In the Respondent's submissions at par 2.17, the Respondent submits that "the dark pink colouration at the southern boundary of the Site (marked by the Applicant's stormwater expert in cross-examination) shows that there are "detrimental increases in the potential flood affectation or other … properties" (contrary to cl 5.2(2)(b) of the CLEP) and "significant adverse impacts of stormwater runoff on adjoining properties" (contrary to cl 6.4(3)(c) of the CLEP), in particular for 47 Fifth Street. I find that the evidence supports this submission.
23. The Respondent submits that 'the evidence and any submission that this thing mimics what's in pace already should be rejected because there is a risk of spill overs due to the tragedy of the commons, and coupled with the impractical expense of them taking steps to address those impacts means that the impacts cannot be framed as neutral. The impacts cannot be assessed by looking at the system, the design only, and assuming that the design is going to work. The impacts need to be assessed by how that system is going to be managed and perform in reality and how the impacts can be mitigated on a day‑to‑day basis, or year‑to‑year basis, from time to time (Transcript 19 August 2022 page 27 at par 10).
24. Expert evidence from Mr Albaba for the Respondent suggests that a positive covenant and restriction on the use of land will burden all lots to upkeep the OSD whereas Mr Bacha, for the Applicant is of the opinion a centralised OSD system within the laneway is an appropriate structure to be used within a community title development. The experts conclude with a joint suggestion that community title subdivision would resolve this issue and some other planning issues although Mr Albaba indicates that no such proposed plans have been provided for comments. (JER Stormwater, Ex 5 Table Particular K)
25. The Applicant's submission is that the Court can impose a Deferred Commencement Condition (page 4, Applicant's speaking notes): "Side note: it is wrong that there would be no power to amend the application to change the form of subdivision: see Great River NSW Pty Limited v Minister for Planning and Public Spaces [2022] NSWLEC 1162 at [3]-[4]. Should the Court have any residual concern regarding management it could make findings that the design of the proposed subdivision is suitable but the form of the management of an aspect of the subdivision is not and put to the applicant an optionto amend or impose a deferred commencement condition - this is not the same as the Court unilaterally changing the development by a condition which is all that Ben-Manashe is authority against."
26. The proposal does not provide for strata or community title and the Respondent submits that the Court does not have power to impose a condition, nor the power to allow an amendment, to provide for strata or community title. Ben-Menashe & Anor v Ku-ring-gai Municipal Council [2001] NSWLEC 168, Lloyd J is authority for the proposition that a subdivision with common property would be something substantially or significantly different from a Torrens title subdivision.
27. I accept the submission of the Respondent and am not satisfied that the Court has the power to unilaterally amend the Development Application to the extent suggested by the Applicant.
28. I now come back to the easement comprised of the Draft s 88B Instrument (Ex C, Tab 4) to be read in conjunction with the draft Plan of Subdivision (Ex C, Tab 3) and the agreed Proposed/Draft Conditions of Consent (Ex 16).
29. Item 3(c) and Item 9 of the draft s 88B Instrument contain the relevant stormwater management provisions. Part 8 of Schedule 8 of the Conveyancing Act 1919 provides as follows: Part 8 Easement for drainage of water 1 The owner of the lot benefited may - (a) drain water from any natural source through each lot burdened, but only within the site of this easement, and (b) do anything reasonably necessary for that purpose, including - • entering the lot burdened, and • taking anything on to the lot burdened, and • using any existing line of pipes, and • carrying out work, such as constructing, placing, repairing or maintaining pipes, channels, ditches and equipment. 2 In exercising those powers, the owner of the lot benefited must - (a) ensure all work is done properly, and (b) cause as little inconvenience as is practicable to the owner and any occupier of the lot burdened, and (c) cause as little damage as is practicable to the lot burdened and any improvement on it, and (d) restore the lot burdened as nearly as is practicable to its former condition, and (e) make good any collateral damage.
30. The Proposed/Draft Conditions of Consent (Ex 16) relevantly seek to amend the Draft s 88B Instrument (Ex C, Tab 4) as follows 1. Consent Conditions 1.1A requires amendments to the Draft s 88B instrument and reads as follows: "1.1A The Draft 88B Instrument, Document No: 226133_1 Reference No: 51445 001 88B, is to be amended as follows: a. Items 4, 5 and 6 are to be amended to reflect the relocation of the bin storage and temporary waste storage areas being deleted from the western end of the driveway and their relocation to be in front of each Lot - i.e to the south of Lots 2-7 and to the West of Lot 1. b. Item 7 is to be deleted, reflecting the relocation of mailboxes to be within each respective Lot. c. the 88B instrument should include covenants to require positive and negative obligations on all lots burdened and benefitted to ensure regular maintenance of the entirety of the detention system every 6 months d. the 88B instrument should include a covenant prohibiting any person using the easement for carriageway for any parking e. the 88B instrument should include covenants to require positive and negative obligations on all lots burdened and benefitted to ensure maintenance of the driveway lighting f. Paragraph 9.3 of the draft s88B instrument is to be deleted to remove the ability for Council to enter and carry out work on the detention system." 1. Consent Condition 5.1 requires the creation of easements prior to the issue of a subdivision certificate and reads as follows: "5.1 Before the issue of a subdivision certificate for the seven Torrens title sub-division, the principal certifier must ensure that easements have been created where necessary over the relevant lots on the plan of subdivision under provisions of the Conveyancing Act 1919 as follows: a. Easements to drain water (for inter-allotment drainage), b. Easement for services (for utilities), c. Right of carriageway (for internal driveway, vehicle manoeuvring and pedestrian movements with or without animals or vehicles), and d. Easement for overhang (for eaves and gutters). Note: a statement must be placed on the Section 88B Instrument that nominates Canterbury-Bankstown Council as the authority empowered to release, vary or modify the easements created."
31. The Applicant proposes operational conditions to ensure the maintenance obligations on the stormwater detention system and to emphasis that there can be no parking on the driveway (Applicant speaking notes page 5). The Applicant submits that this is an appropriate means of managing behaviour and compares the decision of Amazonia Hotels Pty Limited v Council of the City of Sydney [2014] NSWLEC 1247 at [72] which provides as follows: "Planning principle [72] In Revelop Projects Pty Ltd v Parramatta City Council [2014] NSWLEC 1167 at [30], the Senior Commissioner noted that the Commissioners of the Court had undertaken a review of the published list of planning principles in late 2013, in order to determine which planning principles remain relevant in their original form; which, if any, might warrant revision or replacement; and which, if any, were no longer relevant and should be disregarded in the future. The Commissioners decided that the planning principle in Renaldo Plus 3 Pty Ltd v Hurstville City Council [2005] NSWLEC 315 should be retained, and revised to require that where a Plan of Management is appropriate it should be incorporated in the conditions of consent. The sixth question in Renaldo asks whether there is a condition of consent requiring compliance with the Plan of Management. Such a condition assists in enforceability of the provisions of the Plan of Management. The analysis required by Renaldo assumes that the terms of the Plan of Management are known at the time of assessing whether a Plan of Management is appropriate for a particular use and situation. Requiring that the Plan of Management be annexed to the conditions of consent would also achieve certainty as to its terms, and accessibility to any member of the public. The sixth question in Renaldo should be re-worded to read: Is the Management Plan incorporated in the conditions of consent, and to be enforced as a condition of consent?"
32. I am unable to accept the direct comparison sought to be made by the Application between a Plan of Management and the provisions contained within a s 88B Instrument, although I to accept that it may be appropriate to incorporate a s 88B Instrument in conditions of consent.
33. I am not satisfied that the management regime of the OSD system is sufficiently certain and I am not satisfied that the evidence is sufficient to allow me to form the opinion of satisfaction required by cl 5.21(2) of the CLEP.
34. I accept that the design of the OSD system is to mimic the existing conditions however I am not satisfied that the evidence supports the proposition that the potential (or likely) failure to manage and maintain the OSD system will similarly mimic the existing conditions. I find that the reliance on co-ordinated efforts of each individual Lot owner in the Torren title subdivision is not orderly development.
35. I conclude that for these reasons the Proposed Development does not warrant the grant of development consent.
36. I will now briefly address the public interest contention in the context of the rezoning planning proposal.

Contention 7 Public Interest (and contention 3 - rezoning Planning Proposal)

1. Section 4.15(1)(e) of the EPA Act requires the consent authority to take the public interest into consideration in determining a development application.
2. The Respondent contends that "the development application should be refused because approval of the proposal is not in the public interest, having regard to the Contentions raised in this Statement." (ASOFAC, page 17, Ex 1) I note that this contention 7 is not further particularised however the Respondent relies on the Bundle of Rezoning Documents (Ex 10) and contention 3 reads as follows: "The Application should be refused as it will not meet the intended future outcome of the proposed Planning Proposal which seeks to rezone the Site from Zone R2 Low Density Residential to Zone RE1 Public Recreation.".
3. Particular (c) of Contention 3 provides that the proposed development will result in seven individual lots that are proposed to be zoned RE1, pursuant to the CLEP. Residential accommodation is prohibited within the RE1 Public Recreation Zone and therefore the proposed sub-division of the Site to allow for future residential accommodation is inconsistent with the intended future outcome of the proposed Planning Proposal and the objectives of the RE1 Public Recreation zone.
4. It is not disputed that the Proposed Development would be prohibited if the Site were zoned RE1 Public Recreation.
5. The Respondent took the Court to part of the rationale for the Planning Proposal to rezone the Site at folio 57-58 of Exhibit 10 "the planning proposal is consistent with the objectives of this direction, being Ministerial direction 4.1 about flooding. The planning proposal is consistent with the objectives of the direction as it intends to rezone the land from R2 to RE1 Public Recreation, thereby reducing potential flood implications arising from the Site." (Transcript 17 August 2022, page 27 at [43]).
6. The intended outcomes of this Planning Proposal are: • To rezone the site from Zone R2 Low Density Residential to Zone RE1 Public Recreation. • To increase the provision of public open space in an established urban setting. • To provide new opportunities for increased tree canopy within the Canterbury Bankstown LGA. • To manage the impact on the surrounding heritage conservation area by preserving the current character of the site as open space. • To support future demand from new residential developments within the surrounding 2km catchment of the site and Peace Park public open space. • Improve permeability and access through the site and to enhance walkable access to Peace Park from the west and south. • Provide opportunities for the master planning of the enlarged Peace Park to cater for the increased population in the Canterbury Bankstown LGA which is expected to increase by 140,000 people to a total population of around 500,000 by 2036.
7. The Town planning experts considered contention 3 and the experts agree that the Planning Proposal is not imminent or certain. In the JER Town Planning (Ex 2, page 3) the agreement between the experts is articulated as follows: "2.2.1 The Planning Experts note that the planning proposal occurred after the land had been purchased by the applicant and after the submission of the development application. 2.2.2 The Planning Experts agree that the Planning Proposal is not imminent and certain and carries little weight in these proceedings. 2.2.3 The Planning Experts agree that the Planning Proposal should not require the application to be refused. 2.2.4 LK notes that the preparation of a planning proposal following the sale of this land illustrates the Council's acknowledgement of the public interest in maintaining public space and access to those spaces."
8. The Applicant submits firstly that the Planning Proposal does not satisfy the conditions of the Gateway Determination (Transcript 17 August 2022, page 27 at para [24]) and secondly, that the granting of development consent for subdivision (pursuant to cl 2.6 of the CLEP) would not thwart any potential rezoning proposed by the Respondent Council.
9. The Gateway Determination at folio 26 of Ex 10 includes conditions including determining the acquiring authority, which the Respondent agrees is a condition that has not been resolved (Transcript 17 August 2022, page 27 at para [37]). Another condition of the Gateway Determination is the period of time.
10. In essence the Gateway Determination does not authorise the Council to finalise the rezoning Planning Proposal (Transcript 17 August 2022, page 28 at par [4]. I note that the Respondent relies on the Rezoning Bundle, Ex 10, as something that goes to public interest. (Transcript 17 August 2022, page 28 at par [45]).
11. The Applicant submits that the Proposed Development is a subdivision, "so nothing really occurs on the land. There will be a driveway built and there will be some remediation done, and that's good if this does end up being a part of the park, it would be nice to know that there was remediation of the contaminants done. There will be the installation of an onsite stormwater detention system. Again, that would be not a bad thing if this does end up becoming part of the park, that there are facilities in place to regulate or control stormwater. So there's just nothing about this development that in any way would frustrate that outcome." (Transcript 19 August 2022, page 13 at par 9)
12. I make the following findings and conclusions; 1. The rezoning Planning Proposal is not imminent and certain and carries little weight and I accept the Applicant's submission that the Planning Proposal if clearly in a process of stalemate (Transcript 19 August 2022, page 12 at par 24); 2. A grant of development consent for residential Torren title subdivision would not thwart any potential future rezoning thus protecting any public interest.

Conclusion and findings

1. Having considered all the evidence, including the expert oral and written evidence, and having considered the submissions of the parties I conclude that development consent for the Proposed Development should be refused. I have set out my reasons for refusal in this judgment at paras [34]-[68].

Orders:

1. The Court orders: 1. The applicant is to pay the respondent's costs thrown away as a result of the amendment of the application for development consent pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979. 2. The appeal is dismissed. 3. Exhibits 7, 9, 10, 12, 13, 15, F and G are returned and Exhibits 1, 2, 3, 4, 5, 6, 8, 11, 14, 16, A, B, C, D and E are retained.

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: 07 December 2022