//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2011] NSWLEC 1383
Land and Environment Court (NSW)
2011-12-19
Mr P, Mr J
Original judgment source is linked above.
Mr S Simmington (Respondent) Solicitors Storey & Gough (Applicant)
Lindsay Taylor Lawyers (Respondent) File Number(s): 10924 of 2011
Background 1This appeal was lodged against council's refusal of a s96 application to modify a development consent to increase the amount of filling on the site to form a building platform for a new dwelling at 6 Creek Street, Hastings Point. The land is situated in a flood-liable area. 2The original three bedroom, two storey dwelling was approved with a ground floor habitable level of 2.7 m AHD and no filling. A subsequent modification was granted to allow placement of 400 mm of fill on the site and to change the design to a 'concrete slab on ground'. 3When the filling was undertaken an additional depth of approximately 300mm was placed on the site, together with the fill covering a larger area. Consequently, the current application is to regularise this additional filling associated retaining wall and dish drain. 4As the property is low-lying and backs onto a creek that is flood-liable, the application was refused on the basis that the fill would not preserve overland flow paths and likely cause adverse impacts in the local area. A number of objections were lodged against the proposal.
The site 5The subject site is described as Lot 10 DP 24564 and is located on the southern side of Creek Street. It has a total area of 640.29 sq m. The property is generally flat with a slight cross fall from the eastern side property boundary to the western side boundary and rear of the property has a fall of approximately 5% to the southern rear boundary.
Planning controls 6The site is subject to the provisions of the Tweed LEP 2000, under which it is zoned 2(a) low density residential. There is also the Draft Tweed LEP 2010 under which it is zoned R2 Low Density Residential. 7The relevant development controls are contained the Tweed DCP.
The evidence 8In response to the flooding issues, a joint engineering report was prepared by:
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.
Court orders 23The Court orders that: (1)Leave is granted for the applicant to rely on the further amended plan ' Dwg No TWN - T0032.00 R6 dated 12/11. (2)The appeal is upheld. (3)The application 09/0290/01 (as modified) to modify development consent No 09/0290 in relation to the property at No 6 Creek Street, Hastings Point (Lot 10, DP 24564) is approved subject to conditions set out in Annexure "A". The consent is to permit the additional filling, retaining wall and dish drain. R Hussey Commissioner of the Court ANNEXURE A 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: 16 January 2012
Walter Elliott Holdings Pty Ltd
Tweed Shire Council