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[2012] NSWLEC 1016
Land and Environment Court (NSW)
2011-12-13
Mr P
Original judgment source is linked above.
Ms M Hawley - Solicitor (Respondent) Solicitors Mr B Bilinsky (Applicants)
Lindsay Taylor (Respondent) File Number(s): 10883 of 2011
Judgment 1The applicant in these proceedings is seeking to subdivide into five residential allotments land known as No 29 Willow Street Willow Vale, being lots 11 and 12. 2The council approved the subdivision on 14 July 2011 and the applicant objects to a number of conditions imposed by the council. These conditions are numbered 10, 11 and 17. Evidence was given to the Court on behalf of the Respondent Council by Mr Lucas, Manager of Engineering Services and Mr Kalanoski, Development Engineer, both employed by the Council. For the applicant, expert evidence was given by Mr Algie, Consultant Engineer. Their respective comments on the conditions are in Attachments 1 and 2. 3Condition 10 relates to the creation of a positive covenant showing the location of stormwater facilities and requiring that they be maintained in a safe and functional manner. Furthermore, the condition provides for the council to conduct maintenance on the subject stormwater facilities at the owner's expense, if the stormwater facilities are not maintained to the agreed standard. 4Condition 11 also requires a restriction as to user to prevent change in shape or alteration of stormwater facilities as approved by the Council. 5Condition 17 is for the civil engineering works and services and those parts of the condition appealed are for the provision of adequate stormwater drainage infrastructure (pits, pipes, open channels, detention storage) for the conveyance of stormwater passing through the site from upstream and a drainage swale overland flow path must be provided within the proposed driveway to convey stormwater from Willow Street and upstream through the subdivision, to prevent inundation of any proposed, existing or adjoining buildings. 6The site is located on the southern side of Willow Street and the subject lots 11 and 12 have a total area of 5,435 sq m. The site has a street frontage of some 61 m and side boundaries of about 92 m. At the rear of the site there is a main sewer line and to the east of the site on the adjoining property is a 2 m wide drainage easement, from Willow Street to the golf course at the rear, that is owned by the council. The site falls in a south easterly direction with a fall of about 3 m. Currently erected on the land is a dwelling house that is to be proposed lot 1 with an area of 1,250 sq m. The other lot sizes are respectively: Lot 2 1,085 sq m Lot 3 1,090 sq m Lot 4 1,010 sq m Lot 5 1,000 sq m
7The subject site was rezoned in the Wingecarribee Local Environmental Plan 2010 (WLEP) to R2 low-density residential. The WLEP 2010 rezoned the land from rural 1A which had a 40 ha minimum allotment size. Subdivision is permissible with a minimum allotment size 1000 sq m. The objectives of the R2 low-density residential zone are:
Assessment and Findings 22The issue for the Court to determine is the reasonableness of the conditions that the applicant is appealing against. The respondent does not contend that the application should be refused even though this would be open for me to do so. 23Having regard to the evidence to the Court, including that of the experts, the site inspection, and the bundle of documents it is clear that the conditions that Council seeks to impose require this applicant to provide easements and construct major infrastructure for the whole catchment to allow water from the northern boundary, Willow Street to safely be conveyed through the applicant's land by the requirement of a 600 diameter underground pipe below and the 6 m overland flow path. The Council also requires a 2 m easement to convey stormwater from the west through the property. 24The Council's bundle contained information concerning Council reports and resolutions on the Stormwater Management Plan for the catchment. It would appear the council initiated a rezoning for expansion of the Willow Vale neighbourhood with the knowledge that an additional eighty lots would be created in an area that had drainage infrastructure for a 40 ha minimum rural area. At the time of the gazettal for the rezoned area to residential, a stormwater management plan had not been prepared which could have informed a voluntary planning agreement or s 94 plan for the potential number of lots within the catchment to provide a basis for equitable contributions to be made for the required drainage infrastructure of the catchment. The rezoning being a benefit to a number of landowners it would have been fair and reasonable for contributions to the cost of the trunk drainage to serve the wider catchment area to be shared. 25The applicant submitted a development application in July 2010 and this was determined by the Council in July 2011 with a deferred commencement condition requiring the preparation of a stormwater catchment management plan. The deletion of the deferred commencement condition is not contested by the respondent on the basis that following approval of the subject subdivision the Council adopted its own Stormwater Management Plan in September 2011 and the hearing in this matter commenced 9 December 2011. 26From the documents provided to the Court, in particular the Council resolution, it is clear that Council accepts the need for a drainage pipe and overland flow path through the subject site to safely convey stormwater for the catchment. Indeed this is the essence of Council's first resolution, where it endorsed option 6 that includes "the construction of a formalised overland flow path at a maximum width of 6 m through the subject property and an underground stormwater pipe system through lots 11 and 12, No 29 Willow Street". Council further resolved that the option be funded through s 94 stormwater funds. And as a consequence and a mechanism to give effect to and to implement this option, Council also resolved that the Highlands Golf Course be consulted and that Council staff consult with the owners of lots 11 and 12, "regarding the construction of the overland flow part and underground stormwater pipes to safely convey stormwater through the subject land". 27In my assessment, the essence, intent and plain words of the Council's September 2011 resolution makes it clear that the 6 m overland flow path and underground pipe is necessary infrastructure to convey the catchment stormwater through the applicant's property. The series of points in the resolution leave little doubt in my mind that this is Council's responsibility to implement and fund. 28The s 94 plan that was previously in place was abolished when the Council adopted the Shire wide stormwater servicing plan of 9 November 2010. This was after the gazettal of the rezoning in June 2010 and before the adoption of the Stormwater Management Plan for the Willow Vale catchment. The resolution also provided that "2 - the preferred option 6 be funded from the old s 94 stormwater funds, at an estimated cost of $450,000 and " 3 - the Stormwater Development Servicing Plan be amended accordingly". 29I note that the costings in the adopted Stormwater Management Plan do not provide a breakdown to understand what has been included in the $450,000 but at the same time there is no indication that the works on private land were excluded from the estimates. Irrespective of this, it is unreasonable to expect this applicant to fully fund major drainage works to accommodate run-off from the broader catchment through the applicants land. 30Council officers' reports note that the 2 m north-south easement to the east of the subject site does not have the capacity for the catchment run-off and it is clear that the preferred option adopted includes conveying stormwater run-off for the catchment in a safe way through the subject site. The above 2 m easement with a much smaller diameter pipe appears not to be well maintained and according to the reports was only designed for a rural area and not designed for the increased density that the re-zoning now allows. From the site inspection to rely on this pipe alone, I agree with council's experts, would lead to future inundation problems. 31There is no question that the subject site will benefit by this overland flow path and underground pipe, to prevent inundation from upstream to the proposed lots to be created. I am also cognizant that the approval of the subdivision is for the purpose of dwelling houses to be constructed on each lot and these dwellings may be complying development and clearly the issue of the stormwater infrastructure for the catchment should be considered prior to the gazettal of a re-zoning. Clearly this opportunity has been lost and now must be addressed in this subdivision application. However, given the facts in this matter it is unreasonable and inequitable for the applicant to pay the full cost of infrastructure to convey catchment stormwater run-off through the subject land. 32The matter was re-opened on 16 January 2012 to allow the parties to consider my preliminary findings and make further submissions and suggest further conditions. The respondent provided amended conditions and for No 10 the amendment would require Council to conduct maintenance where it is the beneficiary of stormwater infrastructure. Council also proposes an amendment to 12(b) for the creation of an easement of 6m for the north to south overland flow path and 2 m to convey flows from the west. Council's proposed amendment to Condition 17 still requires the applicant to construct the overland flow path and underground pipe subject to design. 33It was submitted on behalf of the respondent that the Court of Appeal judgment in Botany Bay City Council v Saab Corp Pty Ltd [2011] NSWCA 308, provides authority for conditions to be imposed and that " a modicum of commonsense " should be brought to their interpretation in the circumstances of the case and in the context surrounding the development. While I accept that conditions are not legally drafted, at the same time the conditions proposed by the council in this case do not pass the basic reasonableness test. I say this primarily on the basis that the cost of the works has not been apportioned to the potential development of the area rezoned and therefore the conditions are unfair and inequitable. The case of Botany Bay City Council v Saab found that the condition was fair and reasonable in the first instance and therefore then examined the wording of the condition that required it to be read in context with a modicum of common sense. The circumstances and facts in this case are not parallel, as it fails the overarching test of not being reasonable to place the burden of infrastructure required for the whole catchment to be borne by the applicant. 34On behalf of the applicant a 6 m easement in favor of the Council over the land to accommodate the overland flow path and undergrounding of the 600 pipe, with access for council to also maintain, was offered. The applicant also accepts the provision of a pit with the necessary easement over the golf course where it discharges to be constructed at the applicant's expense. 35In terms of the Newbury test, that conditions must fairly and reasonably relate to the permitted development, in the circumstances of this case in my opinion it is apparent that a reasonable planning authority would not impose a condition to require this applicant to pay for in effect major drainage works that are required because of the rezoning. The circumstances and the facts in this case are detailed above and these underpin my conclusion. 36While there is no doubt that the subject site will benefit from these works, the question of the cost of the detailed design, construction and maintenance should not be at the expense and total responsibility of the applicant. This would be unfair and inequitable. On behalf of the Respondent, on 16 January 2012, it was submitted that a cost sharing arrangement could be pursued through a voluntary agreement. 37While I accept the submission made on behalf of the respondent that the council cannot be forced to carry out the necessary major infrastructure works for water from the catchment to be conveyed through the subject site, at the same time, it is unreasonable for the Council to impose conditions on the applicant to pay the cost of construction and maintenance of these works for the catchment. 38It is regrettable that the question of stormwater infrastructure was not addressed at the appropriate stage of the planning process. Nonetheless, having made this comment action was later taken and the Council, on the recommendation of its officers, resolved to adopt option 6 and the resolution also provides authority for the necessary action to implement same as follows: ...which includes the construction of a formalized overland flow path at a maximum width of six metres through the subject property and an underground stormwater pipe system through Lots 11 and 12. Section 7 DP792, No 29 Willow street. 39In my assessment it is an unreasonable burden to place on one landowner to pay for and maintain the infrastructure as required by conditions 17 and 10 and the conditions should be amended and this position is further strengthened by Council's resolution of 28 September 2011. It goes without saying that ideally this is a cost that should be shared and landowners who reap the benefit when land is rezoned and redeveloped. This is consistent with the object of the Environmental Planning and Assessment Act for orderly and economic development. 40It was submitted on behalf of the applicant that conditions 10, 11 and 17 do not relate to the permissible development of the subject land, but rather relate to the permissible development potential of the catchment. And as such, the conditions are unreasonable and do not meet the Newbury test. 41I have concluded that this consent is capable of amended conditions that recognizes the principle of cost sharing even though this may not be ideal, it provides the opportunity to partially address same in a reasonable way and also applying the principle of a modicum of common sense in the interpretation of the amended conditions. While the subject land will benefit by the overland flow path and 600 pipe underground and the 2 m easement on the western boundary, at the same time this infrastructure is necessary to convey the external overland flows through the property and not solely for the benefit of the subject lot. As such, the applicant should not bear the total cost of construction and maintenance of overland flow paths, pipes and maintenance for the benefit of the broader catchment area outside the subject property. 42I have determined the appeal should be upheld and the conditions I have amended in Annexure A to reflect some cost sharing. In particular at the applicant's expense the 6 m easement to be created over the applicant's land from Willow Street to facilitate council to implement its Stormwater Management Plan and maintain this infrastructure. Apportioning the cost of the 6 m overland flowpath and pipe is not possible I recognize the benefit to the applicant and I have determined it is fair and reasonable that the applicant pay the cost of designing and constructing the stormwater infrastructure to convey catchment stormwater from the west through his property via an easement. The applicant is also responsible to pay the cost of the easement to be obtained over the golf course and the construction of the pit and works to safely discharge water downstream. 43The wording of certain conditions has also been changed to reflect my fundamental findings on the principle of fair and reasonable. 44Accordingly, based on my assessment above of the evidence before the Court the appeal is upheld. The conditions of consent are amended in accordance with my findings above. 45The formal orders of the court are: (1)The appeal is upheld. (2)The development application submitted to Wingecarribee Shire Council for a five lot subdivision of lots 11 and 12 Willow Street, Willow Vale is approved, subject to the amended conditions in Annexure A. (3)The exhibits are returned to the parties except for the plan of subdivision, exhibit B. J S Murrell Commissioner of the Court ATTACHMENT 1 ATTACHMENT 2 ANNEXURE A - CONDITIONS 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: 30 January 2012
Zawal
Wingecarribee Shire Council