Conclusion
14Having considered the evidence, the submissions and undertaken a view, I am satisfied that the proposed modification now reasonably responds to the contentions. Insofar as the site is within a flood-liable area, the flood modelling indicated that whilst there are regional flooding issues in the area, the increased (approximately 300 mm) filling that has been placed on the site and associated retaining wall will not impact on the flood storage area or materially alter overland drainage flows within the existing low lying topography.
15The incorporation of the retaining wall is to contain the filling and this is now set back from the common boundary with No 8 by approximately 1 m to enable the construction of a 1 m wide, open dish drain along the common boundary of No 6 and 8 Creek Street. This is to be covered by a drainage easement. I accept the engineers' evidence that this will enable most overland flows from the relatively flat catchment area to be effectively conveyed to the creek area at the rear.
16Insofar as the parties were not agreed on the terms of the easement, Mr Simmington's submission was that the property would obtain a benefit from the proposed works and accordingly it is reasonable in terms of the Newbury tests to be covered by a condition of consent. He referred to the matter of Dogild Pty Ltd v Warringah Council [2008] NSWLEC 53 where Biscoe J said:
50 As to the second Newbury test, all the speeches in Newbury indicated that the nature of the nexus is that the condition must "fairly and reasonably relate" to the permitted development. This was accepted in the High Court by McHugh J and Callinan J in Temwood at [57] and [155] respectively; by the NSW Court of Appeal, for example in Lake Macquarie City Council v Hammersmith Management Pty Ltd (2004) 132 LGERA 225 at [52]; and by this Court, for example in Parramatta City Council v Peterson (1987) 61 LGRA 286 at 295 - 296.
51 What is meant by "fairly and reasonably relate"? The authoritative answer in Temwood at [155] by Callinan J is that it means "it must be a condition, not simply justifiable as one which a reasonable planning authority could impose, but one which is fair and reasonable in the circumstances of the particular case". That seems consistent with dicta in Newbury that there is some overlap between the second and third Newbury tests. Quoting and applying that Temwood passage, Lloyd J held in Charalambous v Ku-ring-gai Council (2007) 155 LGERA 352 at [29] that satisfaction of the Newbury tests depends upon the circumstances of the particular case. His Honour also said that it was inappropriate to determine a bare legal question whether a condition satisfied the Newbury tests without knowing all the facts and circumstances of the case after a full hearing on the merits (at [29]). In the present case there has been a full hearing on the merits in order to inform the Court of the facts and circumstances of the case.
52 In Parramatta City Council v Peterson (above) Stein J held that "fairly and reasonably relate" means that the development is "benefited" by the public amenity provided. He said at 296 "In my opinion the second test of whether the condition fairly and reasonably relates to the permitted development is not answered simply by geographical proximity but rather whether the development is benefited by the public amenity provided. There is no doubt that it must benefit, (as indeed will the Parramatta CBD as a whole), even though the benefit may not be a direct one (in terms of geographical proximity)". A narrower and more rigid test of an "identifiable nexus" and a "direct connection" was rejected: at 295. Peterson , a s 94 condition case, was approved in the context of a non-s 94 condition in this Court in McGregor v Bathurst City Council [1995] NSWLEC 71 by Pearlman J who said: "The second of the Newbury tests was considered by Stein J in Parramatta v Peterson at 296-7 in which his Honour stated the Court's approach to this test should be a broad rather than a narrow approach and that the test is whether the permitted development is benefited by the condition imposed". Peterson was also approved by the Court of Appeal in the s 94 condition case of Lake Macquarie City Council v Hammersmith Management Pty Ltd at 238 [51] where Tobias JA (with whom Mason P and Young CJ in Eq agreed) said in relation to Stein J's judgment: "His Honour found that...the condition requiring a monetary contribution towards its construction satisfied the second Newbury test as the development would be benefited by its provision. This was clear..." Although this line of authority indicates that such a benefit is sufficient to satisfy the second Newbury test, it may not be inconsistent to envisage cases where a condition is fair and reasonable in the circumstances of a particular case (to use Callinan J's description) even if it does not benefit the permitted development.
17However Mr Gough's submission is that the dish drain is primarily required to convey the external overland flows through the property and not solely for the benefit of the subject lot. Therefore the applicant should not bear full responsibility for the creation of the easement.
18My assessment of these competing submissions is that the subject property does derive a material benefit from the approved works by reducing and controlling the entry of nuisance flooding onto the property and the dish drain facilitates this. However it is apparent that most of the overland flows onto the subject property would be from the broader catchment area, outside the subject property.
19In these circumstances I am satisfied there is also a significant public benefit in directing the overland flows from Creek Street to the creek via the dish drain. Although I accept that in more significant flood events there is likely to be overland flows through and around the properties on the lower side of Creek Street.
20Accordingly, I think it is reasonable that the applicant provides a 1 m wide easement to convey surface water along the dish drain and that it be in favour of the council. This option was discussed during the hearing and I accept council's agreement to prepare and register the necessary easement documentation. Furthermore, the easement should allow council representatives to enter the easement area for purposes of maintaining the dish drain.
21In summary then, I am satisfied that this s 96 application relates to the same development, the application was notified and objections considered. The main objection was from Mr O'Reilly who was concerned about possible water ponding on his property from the filling and loss of privacy. I am satisfied from the evidence that providing the new common boundary fence has raised sections to permit overland flows into the dish drain, then there should be no unreasonable ponding on No 8. Furthermore, I am satisfied that the planting of appropriate species on the upper fill level along the common boundary should result in a reasonable level of privacy and the conditions require this.
22Consequently, I am satisfied the application merits conditional consent.