Findings
10Put simply, the council's position is that the deferred commencement condition requiring the acquisition of an easement should remain however if the Court was of the opinion that the amended drainage proposal was appropriate, new deferred commencement conditions should be imposed as the existing details of the amended drainage design are insufficient for the impacts to be fully assessed.
11The applicant's position is that the deferred commencement condition requiring the acquisition of an easement should be deleted and the amended drainage design included as operational conditions rather than deferred commencement conditions. Given that the deferred commencement condition has to be satisfied by 16 August 2011 for the consent to be operational, Mr Wilson opposes any deferred commencement conditions.
12In considering the opposing evidence of Mr Cheang and Mr Kenny, I prefer the conclusions of Mr Cheang for a number of reasons. First, no attempt has been made to obtain an easement under s 40 of the Land and Environment Court Act 1979 (the LEC Act) or s 88k of the Conveyancing Act 1919 notwithstanding that the approval was granted in July 2006. In this regard, the judgment relevantly states [at par 8],
Stormwater drainage (issue 7) was in dispute even though the applicant provided details of disposal of a theoretical stormwater through an easement to Sharland Avenue. The Court was advised that the final stormwater design would be subject of negotiation of an easement through one of a number of downstream properties or in the even that this could not be achieved, action through s 40 of the Land and Environment Court Act 1979 to obtain an easement. A deferred commencement condition addresses this issue of stormwater disposal together with operational conditions. I accept that this is an appropriate way of dealing with this issue.
13This was a commitment made by the applicant and accepted by the council and the Court, as part of the approval of the development application. In accepting that circumstances may change over time, the alternative of seeking an easement through s 40 of the LEC Act was not pursued, despite the time available for these proceedings to be commenced and finalised.
14Second, I do not accept that the terms of condition 7 of the development consent provide any warrant for the proposed design. Condition 7 states:
7. Drainage System for Basement Carpark .
Provision of a basement stormwater pump out system for the driveway ramp, runoff and subsoil drainage. The system is to comprise two submersible type pumps and be designed for the 100 year runoff, have an emergency alarm system and in accordance with the procedure used in AR&R 1997 BK8 F19 1.4. The two (2) pumps shall be designed to work on an alternate basis to ensure that both pumps received equal usage and neither remains continuously idle. The system is to include a holding well which has storage capacity equivalent to the runoff volume from a 2 hour, 100 year ARI storm event so that the basement is safeguarded from flooding during power failure for such a storm over such a period. Design drawings which include holding well volume calculations inflow and outflow calculations, pump specifications and duty curves are to be prepared by a suitably qualified and experienced hydraulic/civil engineer and submitted to the council for approval prior to the issue of the construction certificate
(Reason: Prevent nuisance flooding).
15While condition 7 provides for a "basement stormwater pump out system" it is limited to the driveway ramps and subsoil drainage. Importantly condition 7 needs to be read in conjunction with condition 8 that states:
8. Stormwater Management Plan .
Prior to issue of the construction certificate, the applicant must submit for approval by council scale construction plans and specifications in relation to the stormwater management and disposal system for the development. The construction drawings and specifications are to be prepared by a suitably qualified and experienced civil/hydraulic engineer in accordance with the Council's Water Management Development Control Plan 35 and Technical Standards AS3500.2 and AS3500.3- Plumbing and Drainage Code and the BCA. The construction drawings and specifications must provide for the OSD and reuse tanks under the lower ground floor of the terraces of units 9 and 10.
(Reason: Ensure compliance).
16If the two conditions are considered concurrently, the general thrust of the DCP and its previous manifestation ( Water Management Development Control Plan 35 ) is to provide gravity disposal of stormwater except for driveway ramp runoff and subsoil drainage. It was unclear from the evidence of Mr Cheang how condition 7 was included in the consent given the absence of a detailed drainage design at the development application stage. However, it remains a valid condition of consent. It does not however, excuse the applicant from the other provisions of the DCP particularly the important concept of gravity disposal of stormwater.
17Third, I accept an easement would be "reasonably necessary for the effective use or development of the benefited land "(see (3) below). While this is not an application for an easement; s 88K(1) of the Conveyancing Act 1919 provides the discretionary power to granting an easement. Preston CJ in Rainbowforce Pty Ltd v Skyton Holdings Pty Ltd (2010) NSWLEC 2 171 LGERA 287 [at 67] makes ten important points about the discretion available in s 88K(1) and while not all are relevant in this case, some provide some guidance in this case. The ten points are:
(1) The power to impose an easement is made conditional upon satisfaction of the requirement in s 88K(1). Subsection (1) has been described as the governing subsection although the criteria in subsection (2) must also be met if an order is to be made.
(2) The Court is required to stipulate in the order, the nature and the terms of the easement s 88K(3).
(3) The enquiry directed by s 88K(1) is whether the easement is reasonably necessary for the effective use or development of the benefited land.
(4) The easement is to be reasonably necessary for the effective use or development of that land, effective bears its ordinary dictionary meaning of "serving to effect the purpose; producing the attendant or expected result".
(5) The easement is to be reasonably necessary for the effective use or development of the land itself, not merely the current proprietor's enjoyment of that land.
(6) The requirement that the easement be reasonably necessary does not mean that there must be an absolute necessity for the easement. Reasonable necessity should be assured having regard to the burden of which the easement would impose, generally the greater the burden the stronger the case needed to justify a finding of reasonable necessity.
(7) The precise consequence of applying the test of reasonable necessity to the effective use or development of the benefited land is not settled on the authorities. On one view the Court will take into account whether and to what extent use of development with the easement is preferable to use or development without the easement.
(8) Reasonable necessity does not demand that there be no alternative land over which an easement could be reasonably, officiously imposed. Consequently, the Court may impose an easement even where an alternate route exists.
(9) Reasonable necessity is to be determined in light of the circumstances at the time of the hearing of the easement application.
(10) The requirement of reasonable necessity can be satisfied notwithstanding that some future action may be required in addition to obtaining the easement for the effective use or development land such as obtaining some statutory consent.
18In this case, I am satisfied that an easement is "reasonably necessary for the effective use or development of the land." I agree with Mr Cheang that the gravity disposal of stormwater is the preferred method of stormwater disposal because of the potential problems with pump out systems, except in exceptional circumstances. This was also a position accepted by Mr Kenny. I do not accept that exceptional circumstances occur in this case.
19I also accept that the availability of other methods of disposing stormwater, such as that proposed by the applicant, does not mean that the easement should not be provided, given the agreed preference for gravity disposal (see (6) and (8)).
20Fourth, I am not satisfied that full and proper negotiations have taken place with owners of the downstream properties. The applicant provided copies of correspondence between the applicant and the downstream owners of properties 16, 18, 18A and 20 Sharland Avenue commencing in January 1999. Ms Irish, barrister for the council, helpfully provided a prcis of the communications for each property in her written submissions. While the discussions on the acquisition of an easement started well before the subject development application, I note that only one valuation was provided by the applicant to the downstream property owners and this was dated 20 May 2010. There must be some doubt that any offers, prior to 20 May 2010, were realistic in the absence of any formal valuation for compensation for the easement. Evidence of negotiations is largely unhelpful if based on unrealistic offers of compensation.
21I also do not accept there can be any criticism made of any of the downstream owners in their discussions with the applicant. The owners have no obligation to agree to the imposition of an easement over their land. The onus rests with the applicant to come to an arrangement including reasonable compensation. If no agreement can be reached, opportunities are available through the LEC Act and the Conveyancing Act 1919 . The need for an easement was clearly known by the applicant long before the approval of the development application, based on the chronology of correspondence with downstream property owners.
22Fifth, I am not satisfied that the applicant provided sufficient evidence to indicate that there are physical reasons why an easement could not be created over one of the downstream properties. Expert arboreal evidence was provided by Mr Guy Paroissen for the council and Mr Andrew McGahey for the applicant on the potential impact of an easement on existing vegetation on downstream properties. In my view, their evidence was inconclusive or potentially unreliable as Mr McGahey had not inspected any downstream property, except for observations made from the street frontage and the subject site. Mr Paroissen had inspected only 16 Sharland Avenue from within the property. In any event, there was general agreement between the experts that in the event that a tree warranted retention and was located in the location of a potential easement, then tunnel boring of the pipeline was a potential solution to this particular problem.
23Sixth and while Mr Wilson explained the reasons for the applicant's desire to be free of any restrictive deferred commencement conditions of consent, I do not accept that this is a valid reason to depart from the widely accepted engineering practise of gravity disposal of stormwater.